Part 3 Remuneration of office holders (other than chief executive or senior executive office holders)
In this Part:allowance does not include a travelling or subsistence allowance, but includes a travelling or subsistence allowance for travel within Australia by the holder of an office specified in Schedule 1 who is:
(a) a Judge or Acting Judge of a court, or(b) any other judicial officer (within the meaning of the Judicial Officers Act 1986) nominated by the Minister by notice in writing to the Tribunal for the purposes of this definition.determination means a determination made by the Tribunal under section 13, 14, 15 or 15A.
office holder means the holder of an office specified in Schedule 1, 2 or 3.
remuneration means remuneration by way of salary or allowances payable in money to an office holder.
11 Payment of remuneration to office holders
(1) Each office holder is entitled to be paid:(a) a salary that is calculated in such a manner as is specified, and(b) allowances (if any) that are:in respect of the office holder in a determination that is in force.(i) of such classes or kinds as are specified, and(ii) calculated in such a manner as is specified,(2) The holder of an office specified in:(a) Column 1 of Part 1 of Schedule 3—is not entitled to be paid remuneration by virtue of this section unless the office holder is the person described in column 2 of that part opposite the office so specified, or(b) Part 2 of Schedule 3—is not entitled to be paid remuneration by virtue of this section unless the office holder is required by the Governor (by the terms of his or her appointment or otherwise) to devote the whole of his or her time to the duties of his or her office.(3) All remuneration payable to the holder of an office specified in Schedule 1 by virtue of a determination that is in force is payable out of the Consolidated Fund which, to the necessary extent, is appropriated accordingly.
11A Employment benefits for non-judicial office holders
(1) This section applies to office holders (other than office holders who are judicial officers within the meaning of the Judicial Officers Act 1986) who are nominated by the Minister by notice in writing to the Tribunal for the purposes of this section.(2) A determination of the remuneration to be paid to office holders to whom this section applies must fix the remuneration as a single amount without reference to salary or allowances.(3) An office holder to whom this section applies is entitled to be provided with employment benefits (within the meaning of Division 4 of Part 3.1 of the Public Sector Employment and Management Act 2002) if:(a) the office holder elects by notice in writing to the Minister to be provided with those employment benefits, and(b) the Minister approves of that election, and(c) the remuneration otherwise payable to the office holder under section 11 is reduced by the cost of those employment benefits (being the cost determined under that Division of similar employment benefits provided to an executive officer under that Division).(3A) Contributions to a superannuation scheme by an employer (for superannuation purposes) in respect of an office holder who has made an election under subsection (3) that are required to be made by the employer under a law of the State relating to superannuation are, until provided for by an election under that subsection, taken to be an employment benefit for which there is an election in force under that subsection.(4) A nomination referred to in subsection (1) may be revoked at any time, but the revocation does not apply to the determination in force at the time of the revocation.(5) An election referred to in subsection (3) (a) may, with the approval of the Minister, be revoked at any time.(6) In the case of the holder of an office specified in Schedule 1:(a) a nomination referred to in subsection (1) may not be made or revoked without the approval of that office holder, and(b) an election referred to in subsection (3) (a) may be made or revoked without the Minister’s approval.(7) This section has effect despite anything to the contrary in this Part.
11B Salary sacrifice for motor vehicles and superannuation for office holders not subject to section 11A
(1) This section applies to office holders other than office holders to whom section 11A applies.(2) The employment benefits that an office holder may be provided with under this section are either or both of the following:(a) the provision of a motor vehicle for private use by the office holder,(b) the payment, on behalf of the office holder, of employee contributions to a superannuation scheme (except in the case of an office holder to whom the Judges’ Pensions Act 1953 applies).(3) An office holder to whom this section applies is entitled to be provided with any such employment benefit if:(a) the office holder elects by notice in writing to the Minister to be provided with that employment benefit, and(b) the Minister approves of the provision of that employment benefit, and(c) the salary otherwise payable to the office holder under section 11 is reduced by the cost of that employment benefit (being the cost determined under Division 4 of Part 3.1 of the Public Sector Employment and Management Act 2002 of a similar employment benefit under that Division).(4) An election referred to in subsection (3) (a) may, with the approval of the Minister, be revoked at any time.(5) This section has effect despite anything to the contrary in this Part.
The Tribunal shall, in each year, make a determination of the remuneration to be paid to office holders as on and from 1 October in that year.
14 Special determinations: by direction
(1) Where the Minister so directs, the Tribunal, not later than the day specified in the direction as the day on or before which the determination is to be made, shall, after taking into consideration such matters as are specified in the direction and such other matters as the Tribunal thinks fit, make a determination as to whether, and (if so) how, any determination already made should be altered in relation to such office holders as are referred to in the direction.(2) A reference in subsection (1) to an office holder includes a reference to an office holder whose remuneration is not fixed by the determination to which the determination made under this section relates.
15 Special determinations: wages decisions
The Tribunal may, for the purpose of applying, in such manner as the Tribunal thinks appropriate, a wages decision to the remuneration of office holders or any of them or any class of them, make a determination as to whether, and (if so) how, any determination already made should be altered.
15A Special determinations: wages decisions (on or after 4 April 1984)
(1) While this section has effect, sections 13, 15, 16 (2), 18 (2) and 20 (2) do not have effect.(2) The Tribunal shall, as soon as practicable after the making of a wages decision, make a determination of the remuneration to be paid to office holders as on and from the day to be specified in the determination.(3) The reference in this section to a wages decision is a reference to a wages decision made on or after 4 April 1984 but does not include a reference to a decision prescribed by the regulations as a decision to which this section does not apply.
16 General provisions as to determinations
(1) In making a determination, the Tribunal may determine:(a) that any class or kind of remuneration shall be at rates the same as or higher or lower than those at which it was payable immediately before the determination comes into force,(b) that any class or kind of allowance payable immediately before the determination came into force shall:(i) be payable to office holders or any of them or any class of them who or which are or is not in receipt of an allowance of that class or kind immediately before the determination comes into force,(ii) be not payable to office holders or any of them or any class of them who or which are or is in receipt of an allowance of that class or kind immediately before the determination comes into force,(iii) cease to be payable, or(iv) be replaced by an allowance of some other class or kind, or(c) that, in addition to any class or kind of remuneration payable at the time the determination is made, an allowance of some additional class or kind shall be payable to office holders or any of them or any class of them.(1A) A determination by the Tribunal of the remuneration to be paid to an office holder who is an officer in the Public Service may not be less than the maximum salary, at the time of the determination, for a clerk (grade 12) in the Public Service.(2) The Tribunal may, in a determination, make provision for the application, in such manner as the Tribunal thinks fit, of any wages decision that may be made after the date of the determination, but before the end of the period in which the determination has effect, to the remuneration to be paid to office holders or any of them or any class of them.(3) The Tribunal may make a determination that applies in relation to an office specified in Schedule 1, 2 or 3 notwithstanding that:(a) no person holds the office for the time being, or(b) the person who holds the office for the time being is not entitled to be paid remuneration under this Act.(4) The Tribunal may make a determination that does not apply in relation to an office specified in Schedule 1, 2 or 3 if:(a) no person holds the office for the time being, or(b) the person who holds the office for the time being is not entitled to be paid remuneration under this Act.(5) The Tribunal may, in a determination that applies in relation to an office specified in Schedule 2 or 3, provide that a special allowance (whether or not in addition to any other allowance) is payable only to the holder of the office who is named in the determination.(6) A determination may be made so as to apply differently as between two or more persons holding the same office, being an office specified in Schedule 2 or 3 but not Schedule 1.(7) A reference in this section to an office specified in Schedule 2 includes a reference to an office specified in Schedule 1 to the Public Service Act 1979.
(1) Before making a determination, the Tribunal may make such inquiry as the Tribunal thinks necessary.(2) An inquiry held for the purpose of a determination to be made under section 13 may not be commenced before 1 April in the year in which the determination is to be made.(3) In the exercise or performance of the Tribunal’s powers, authorities, duties and functions under this Part:(a) the Tribunal may inform himself or herself in such manner as the Tribunal thinks fit,(b) the Tribunal may receive written or oral submissions,(c) the Tribunal shall take into consideration submissions received by the Tribunal relating to the remuneration of office holders, whether or not those submissions were received in response to an invitation under subsection (4),(d) the Tribunal is not required to conduct any proceedings in a formal manner, and(e) the Tribunal is not bound by the rules of evidence.(4) Without affecting the generality of subsection (3), the Tribunal may invite submissions from office holders, Ministers of the Crown, members and officers of statutory bodies and Departments of the Government and any other persons.
(1) (Repealed)(2) The Tribunal shall, in each year, make a report to the Minister of the Tribunal’s determination made in that year under section 13.(3) The Tribunal shall, not later than the day specified in a direction referred to in section 14, as the day on or before which the determination is to be made, make a report to the Minister of the Tribunal’s determination made in consequence of that direction.(4) The Tribunal shall, as soon as practicable after making a determination under section 15 or 15A, make a report to the Minister of the Tribunal’s determination.
(1) The report of a determination shall:(a) be published in the Gazette as soon as practicable after the report is received by the Minister, and(b) be laid before each House of Parliament within 14 sitting days of that House after the day on which it is so published.(2) Failure to lay a report before each House of Parliament in accordance with this section does not affect the validity of a determination, but the report must nevertheless be laid before each House.
19A Disallowance of determinations
(1) Either House of Parliament may pass a resolution disallowing a determination:(a) at any time before the relevant report is laid before the House, or(b) at any time after the relevant report is laid before the House, but only if notice of the resolution was given within 15 sitting days of the House after the relevant report was so laid.(2) On the passing of a resolution disallowing a determination:(a) in the case of a determination under section 13 or 15A—the determination shall have effect as if it were a determination that remuneration payable to office holders shall be of the same classes or kinds, and at the same rates, as those payable immediately before the determination came or comes into force, as the case requires, or(b) in the case of a determination under section 14 or 15—the determination shall thereupon cease to have effect.(3) Nothing in subsection (2) affects any remuneration paid or payable in respect of any period before the date of the resolution referred to in that subsection.
20 Operation of determinations
(1) Subject to this Act, a determination, the report of which is published in the Gazette under section 19 (1) and which was made under:(a) (Repealed)(b) section 13—shall come into force, or be deemed to have come into force, on 1 October in the year in which it is made, and(c) section 14, 15 or 15A—shall come into force, or be deemed to have come into force, on the day specified in the determination as the day on which the determination is, or is to be deemed, to come into force.(2) Subject to this Act, a determination shall continue in force until and including 30 September next following the day on which it comes into force.(2A) Subject to this Act, a determination made under section 15A shall continue in force until another determination made under section 13 or 15A comes into force.(2B) A determination made under section 13 or 15A has effect subject to any subsequent alteration that was made under section 14 or 15 and that is in force.(2C) A determination made under section 13 shall not come into force if, after it was made and before it would, but for this subsection, have come into force, a determination made under section 15A comes into force.(3) A determination has effect subject to any alteration made to it by a determination that was made under section 14 or 15 and that is in force.(4) Where:(a) a determination is made under section 15 for the purpose of applying a wages decision,(a1) a determination is made under section 15A in consequence of the making of a wages decision, or(b) a wages decision is to be applied in accordance with a provision of the kind referred to in section 16 (2),no alteration of remuneration shall be effected thereby before:(c) the day as on and from which rates of wages in awards made under the Industrial Relations Act 1996 are varied in consequence of the wages decision, or(d) where any of those rates are so varied as on and from different days—the earlier or earliest of those days.(5) A determination shall not be challenged, reviewed, quashed or called into question before any court or in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition, mandamus, certiorari or otherwise.
21 Restrictions on reduction of remuneration of certain office holders
(1) Notwithstanding any other section of this Act, a determination does not operate so as to reduce the rate at which remuneration is payable to the holder of an office specified in Schedule 1.(2) Where an Act contains a provision to the effect that subsection (1) does not apply to a determination made before the date of assent to that Act, then, subject to that Act, the reduction effected by virtue of that Act does not, in relation to any period before that date, apply to a person who is not an office holder at that date.(3) A determination does not operate so as to reduce, contrary to a written contract or agreement entered into by a person and by or on behalf of the State or the Government of the State, the rate at which remuneration is payable to the person as an office holder, unless the person agrees in writing.
22 Remuneration payable during period before publication of report
(1) If the report of a determination made under section 13 is published in the Gazette after 1 October in the year in which it is made, each office holder is, for the period commencing on and including that day and ending on and including the day preceding the date of publication, entitled to be paid the remuneration that the office holder would have been entitled to be paid had the determination in force on the preceding 30 September continued in force, subject to any adjustment necessary by reason of the making and publication of the report.(2) Notwithstanding anything in this Act, where a determination takes effect on a date (referred to in this subsection as the effective date) that is earlier than the date of publication in the Gazette of the report of the determination, a person who:(a) was an office holder at or at any time after the effective date, and(b) was not an office holder at the date of publication,is not, in relation to any period before the date of publication, affected by the determination, unless:(c) the determination would, if he or she had continued in office, operate to increase the remuneration payable to him or her in relation to that period, and(d) he or she ceased to hold office otherwise than by reason of resigning office (except by way of retirement) or by reason of removal from office by the Governor or by resolution of either or both of the Houses of Parliament.
23 Remuneration of office holders not dealt with
(1) Where, but for this subsection, no remuneration would be payable to an office holder in respect of any period during which he or she is an office holder, the Minister may, from time to time, fix the remuneration payable to the office holder in respect of that period.(2) The remuneration payable to an office holder under subsection (1) is payable until a determination applicable to the office holder comes into force.(3) The holder of an office specified in:(a) Column 1 of Part 1 of Schedule 3—is not entitled to be paid remuneration by virtue of this section unless the office holder is the person described in Column 2 of that Part opposite the office so specified, or(b) Part 2 of Schedule 3—is not entitled to be paid remuneration by virtue of this section unless the office holder is required by the Governor (by the terms of the office holder’s appointment or otherwise) to devote the whole of the office holder’s time to the duties of the office holder’s office.
23A Application of quantum and principles determined in State Wage Cases
The Tribunal in making a determination under section 14 or 15A, and the Minister in fixing remuneration under section 23, shall:(a) have regard to the most recent determination of the Industrial Commission of New South Wales under section 57 of the Industrial Arbitration Act 1940 of:(i) the amount, or(ii) the method by which an amount may be determined,by which rates of wages in awards made under that Act shall be varied, and(b) adopt, as far as practicable, the principles of wage fixation for the time being adopted as a general ruling or declaration of principle, by that Commission, in connection with awards made under that Act.
23B Suspension of sections 15A and 23A
(1) The Governor may, by order published in the Gazette, declare that sections 15A and 23A are suspended either until a specified date or until further notice is given by order published in the Gazette.(2) While a declaration under this section is in force, sections 15A and 23A do not have effect.Editorial note. Declaration suspending operation of secs 15A and 23A until further notice published in Gazette No 5 of 20.1.1989, p 322.
An office holder is entitled to the remuneration provided for by this Act in respect of the office holder, instead of that payable to the office holder by or under any other Act.