Remuneration Tribunal (Recreation Leave for Holders of Relevant Offices) Determination 2018

This instrument is the Remuneration Tribunal (Recreation Leave for Holders of Relevant Offices) Determination 2018. It sets the mechanics for recreation (annual) leave entitlements for holders of specified Commonwealth public offices to which the Remuneration Tribunal’s 2018 principal determinations apply. The determination commenced on 1 July 2018 (s 2) and was made under the Remuneration Tribunal Act 1973, specifically subsections 7(3AA) and 8A(4) (s 3). It supersedes and repeals the earlier Determination 2012/11 (s 4; Schedule 1).

Mechanically, the instrument prescribes accrual, pay rate while on leave, recognition of pre‑appointment credits, treatment of leave accrued under previous Tribunal determinations, limited additional entitlements for some territory administrators, rules for agency administration of that leave, the authorities who may approve leave, and the basis for any payment in lieu of leave (ss 8-14). Accrual is fixed at a credit of four weeks’ recreation leave for each completed 12 months of service, with pro rata accrual permitted for partial service periods (s 8(1)). Payment for recreation leave is at the office holder’s normal weekly salary (s 8(2)). Payment in lieu is calculated using the office holder’s reference salary, which the instrument defines as total remuneration less the employer superannuation contribution as determined in the relevant principal determination (s 6; s 14).

Administration of the leave is delegated to the office holder’s agency, which must apply its general annual leave or recreation leave policies, subject to constraints the determination imposes (s 12). Approval of leave requires sign‑off by the person or body who may grant leave under other Commonwealth law, or absent such a specified authority, by the Minister with portfolio responsibility for the office (s 13). The instrument also preserves prior accrued entitlements under earlier Tribunal determinations (s 10) and provides a mechanism to convert leave credits held under a prior Commonwealth employing Act into equivalent credits under this instrument when an office holder resigns from that prior employment upon appointment (s 9).

The text is short and prescriptive. It interlocks with the Remuneration Tribunal’s principal determinations that define who the instrument covers, and it constrains agency-level augmentation of recreation leave beyond the quantum stipulated here (s 12(4)). The following sections unpack definitions, operational mechanics, decision points, compliance effects and implementation risks strictly on the basis of the instrument’s text.

The determination relies on a small set of defined concepts that control scope, measurement and calculation.

• Office holder and relevant office: The instrument applies to persons who hold a "relevant office" to which the Tribunal’s 2018 principal determinations apply, either the Remuneration Tribunal (Remuneration and Allowances for Holders of Full‑time Public Office) Determination 2018 or the Remuneration Tribunal (Specified Statutory Offices,Remuneration and Allowances) Determination 2018 (s 7). The instrument notes that principal executive offices are not relevant offices and that certain specified statutory offices (Chief of the Defence Force and Australian Statistician) are excluded from the Tribunal’s power to determine recreation leave entitlements (s 7, notes).

• Reference salary and total remuneration: Reference salary is specifically defined as total remuneration less the amount reflecting the employer superannuation contribution, each of which has the same meaning as in the relevant principal determination (s 6). That definition matters for calculations of payment in lieu and for understanding how leave pay aligns with total package elements (s 14).

• Accrual rule: The basic accrual metric is one credit of four weeks of recreation leave per completed 12 months of service, with pro rata accrual for part years (s 8(1)). The payment rate while on leave is the office holder’s normal weekly salary (s 8(2)). Those provide the arithmetic scaffolding for entitlements and cash‑out calculations.

• Recognition and conversion of prior credits: The instrument recognises recreation leave accrued under previous Tribunal determinations as entitlements under this instrument (s 10). It also provides a conversion rule for credits accrued under another Commonwealth employing Act where the office holder elects to resign that earlier employment on or after appointment and has not been paid out, converting the prior credit into an equivalent credit under this instrument as at the resignation date (s 9).

• Agency administration and limits: Agencies are designated as the administrators of leave, applying their general annual or recreation leave policies that apply to employees, or specified SES policies where relevant, but only insofar as those policies do not create recreation leave additional to the leave under this instrument (s 12(1)-(4)). Agencies’ policies can cover limitations on credits, deeming on leave, sickness while on approved leave and cashing out, although deeming on leave provisions do not apply to holders of specified statutory offices (s 12(3)-(5)).

The instrument applies narrowly to office holders who hold a "relevant office" covered by the Tribunal’s cited principal determinations. Section 7 specifies two categories: (a) relevant offices to which the Remuneration Tribunal (Remuneration and Allowances for Holders of Full‑time Public Office) Determination 2018 applies, and (b) relevant offices to which the Remuneration Tribunal (Specified Statutory Offices,Remuneration and Allowances) Determination 2018 applies. The instrument therefore targets holders of full‑time public offices and specified statutory offices as further defined by those principal determinations (s 7).

The instrument constructs the relationship between office holders and agencies. An office holder’s "agency" is defined as the agency to which the office holder is attached, or, if not attached to an agency, the portfolio department (s 6). That definition assigns responsibility for administration and payment to the employing agency or portfolio department in practice (s 12). For practical purposes, the instrument therefore affects three groups:

• Office holders in the named categories who will accrue and take leave according to the rules (ss 7, 8).

• Agencies and portfolio departments that administer, approve, and pay recreation leave and that must apply internal leave policies subject to the instrument’s constraints (s 12).

• Approval authorities and Ministers who hold formal authority to approve leave under Commonwealth law or under s 13 when no specific relevant authority is prescribed.

The instrument excludes certain offices from its reach by cross‑reference. It notes that a principal executive office is not a relevant office (note under s 7 referring to paragraph 3(4)(ra) of the Remuneration Tribunal Act) and that although specified statutory offices are relevant offices, the Tribunal does not have power to determine recreation leave entitlements for the Chief of the Defence Force or the Australian Statistician (note under s 7). Those exclusions mean holders of those specific offices are not within the operational scope of this instrument.

Consequences for those affected are concrete. Office holders receive accruals and pay at a defined rate (s 8). Agencies must administer entitlements using their existing leave policies but must ensure those policies do not extend recreation leave beyond the quantum set by the instrument (s 12(1)-(4)). Approval of leave requires involvement of an authority or Minister (s 13), so decision‑making is concentrated in authorities who already exercise leave powers or in the responsible Minister where those powers are unspecified.

The instrument establishes specific duties for agencies and corresponding rights for office holders, expressed in statutory mechanics.

Rights of office holders

• Accrual right: For each completed 12 months of service, an office holder has a right to accrue a credit of four weeks’ recreation leave, with pro rata accrual for partial years (s 8(1)). This is an entitlement arising by operation of the determination.

• Leave pay right: When taking recreation leave, an office holder is entitled to be paid at their normal weekly salary (s 8(2)). If the office holder becomes eligible for a payment in lieu, the payment is to be calculated using their reference salary as defined in the instrument (s 14; s 6).

• Recognition of earlier rights: Any recreation leave accrued under previous Tribunal determinations is recognised as an entitlement under this instrument (s 10), preserving prior accrued rights.

• Conversion of prior credits: If an office holder resigns from another Commonwealth employing Act on or after appointment and had not been paid out for leave credits, the office holder is taken to have accrued an equivalent credit under this instrument on the day of resignation, and it is treated as having accrued on the original accrual date (s 9(1)-(2)).

Duties of agencies and decision‑makers

• Administration duty: Agencies are required to administer the office holder’s recreation leave using their policies and practices that apply to annual leave or recreation leave generally for employees in that agency, or specific SES policies where applicable, subject to this instrument’s terms (s 12(1)-(2)). The duty includes applying provisions covering limitations on credits, deeming on leave (subject to s 12(5)), sickness during leave, and cashing out as set out in the agency policies (s 12(3)).

• Constraint duty: Agencies must ensure their policies do not have the effect of providing recreation leave additional to the leave under this instrument (s 12(4)). That is an express constraint on agency policy-making and administrative practice.

• Approval duty: Leave may only be taken if approved by the person, authority, body, or delegate who may, under another Commonwealth law, grant leave of absence other than recreation leave to the holder of that office; where law does not specify such an authority, the Minister with portfolio responsibility acts as the approving authority for the purposes of s 7(3AD) of the Act (s 13). This creates a duty to obtain specified approval before leave is taken.

The instrument is prescriptive about entitlements, administration and decision‑making but does not create or specify civil penalties, criminal penalties, or enforcement mechanisms within its text. The determination prescribes rights and administrative obligations,such as accrual, payment, conversion of credits and rules for approval and administration,but it is silent on remedies, enforcement procedures, or penalty clauses within the instrument itself.

Enforcement implications therefore follow by presumption from the broader statutory and administrative context rather than from any express sanction in this instrument. Practitioners should note:

• The determination operates under the authority of the Remuneration Tribunal Act 1973 (s 3). Any enforcement or dispute resolution mechanisms for non‑compliance with Tribunal determinations would depend on the Act’s governance and any applicable administrative law or employment law remedies, none of which are set out in this determination.

• Agencies are required to administer leave in accordance with their policies and the instrument (s 12). Failure by an agency to do so would likely be addressed through internal administrative processes, payroll rectification, or external remedies available to the office holder under administrative law or contract law, but the instrument itself does not prescribe a statutory enforcement route, damages, fines or pecuniary penalties.

• Approval of leave is subject to statutory or delegated authorities as described (s 13). A denial or incorrect approval is an administrative act; remedies would be those available under general administrative law principles and employment arrangements, not remedies specified in the determination.

• Calculation matters (for pay on leave or payment in lieu using reference salary) are set by specific definitional rules in the instrument (s 6; s 8(2); s 14). Disputes about calculation would hinge on interpretation of those definitions and the relevant principal determinations. The instrument contains a conversion rule for prior credits (s 9), but it does not indicate a mechanism for enforcement where conversion is not applied.

In short, the determination sets substantive entitlements and administrative duties but does not provide internal enforcement mechanisms or penalties. Any enforcement or redress for non‑compliance therefore arises from ancillary legal frameworks: the Remuneration Tribunal Act, agency employment instruments, administrative law, or common law obligations. The instrument’s silence on sanctions means that compliance pressure will primarily be operational and reputational for agencies, and legal or equitable for office holders seeking remediation.

The instrument is explicitly designed to operate in a network with other instruments and Commonwealth laws. The interactions are textual and prescriptive.

Primary statutory authority

• Remuneration Tribunal Act 1973: The determination is made under subsections 7(3AA) and 8A(4) of the Act (s 3). The Act supplies the Tribunal’s enabling power and the definition of "relevant office" in subsection 7(3AB), which the determination references for scope (s 6 note; s 7).

Principal determinations referenced

• The instrument only applies to office holders covered by certain principal Tribunal determinations: the Remuneration Tribunal (Remuneration and Allowances for Holders of Full‑time Public Office) Determination 2018 and the Remuneration Tribunal (Specified Statutory Offices,Remuneration and Allowances) Determination 2018, or any determinations that supersede those instruments (s 7). That cross‑reference means the identity of persons covered, the definitions of total remuneration, employer superannuation contributions and reference salary are determined in and by those principal determinations (s 6; s 7). Calculation of pay and payments in lieu is therefore contingent on those other instruments.

Interaction with agency employment law and policies

• Agency policies and practices: The instrument requires agencies to administer leave using their policies and practices relating to annual or recreation leave that apply generally to employees, or specific SES policies where relevant (s 12(1)-(2)). Agencies’ internal leave rules govern operational matters such as capping accruals, deeming on leave, sickness while on leave, and cashing out, but only if those policies do not create additional recreation leave beyond the instrument (s 12(3)-(4)). That interaction places Tribunal entitlements as a baseline, with agency instruments filling in procedural and operational detail.

Interaction with other Commonwealth leave law and approval authorities

• Approval: The instrument defers to whoever may grant leave other than recreation leave under a law of the Commonwealth for the holder of that office; where that law does not specify such an authority, the instrument specifies the Minister with portfolio responsibility for the relevant office (s 13). This expressly dovetails Tribunal entitlements into the existing legal framework that governs leave authority for particular offices.

Conversion and recognition of earlier rights

The instrument itself contains a short, explicit amendment and commencement history.

• Commencement: The whole instrument commenced on 1 July 2018 (s 2(1)). The commencement table is limited to this original making of the instrument and does not record later amendments (s 2 notes).

• Authority and making: It was made under subsections 7(3AA) and 8A(4) of the Remuneration Tribunal Act 1973 (s 3), indicating it is a Tribunal determination created within the Act’s delegated powers.

• Supersession and repeal of prior Determination 2012/11: Section 4 states the instrument supersedes Determination 2012/11: Recreation Leave for Full‑Time Holders of Relevant Offices. Schedule 1 expressly repeals the whole of that earlier instrument. The Schedule 1 entry reads "The whole of the instrument , Repeal the instrument" with the title of the 2012 instrument indicated. The instrument therefore replaced the 2012 text as of 1 July 2018.

• No subsequent amendments recorded in the instrument text: The instrument’s text does not record any later amendments or modifications. The commencement table contains a note that it relates only to provisions as originally made and will not be amended to deal with later amendments (s 2 note). No amendment clauses are included elsewhere in the text.

• Logical dependence on superseding principal determinations: Section 7’s application references the 2018 principal determinations or "any determination that supersedes that determination", which means subsequent updates to the principal determinations could change which office holders fall within scope or alter the meanings of employer superannuation contribution, total remuneration and reference salary (s 7; s 6). The instrument’s own text does not itself effect those changes; it anticipates that the principal determinations may be superseded and that those superseding instruments will determine application and definitions.

For practitioners, the operative dates and the repeal of the earlier 2012 instrument are explicit in the text. There are no transitional provisions beyond those express recognition and conversion clauses for prior credits (s 9-10). The instrument does not record later amendment history; any changes to how the instrument operates would need to be verified by checking for later Tribunal determinations or amendments outside the text supplied here.

The instrument contains no reference to any litigation, court decisions, or adjudicative history. It does not name any cases, nor does it record judicial interpretation or dispute outcomes. Therefore, based solely on the instrument’s text, there is no litigation history to report.

That absence is material for practitioners reviewing this instrument. Two practical implications flow from the instrument’s silence:

• No appellate or judicial gloss in the instrument: The text provides the Tribunal’s terms but furnishes no authoritative interpretive guidance arising from litigation. Any interpretive disputes,over what constitutes "normal weekly salary", the calculation of reference salary, the pro rata application of accruals, or the conversion of pre‑appointment credits,will need to be resolved by reference to the instrument’s wording, the Remuneration Tribunal Act, the relevant principal determinations, and, if contested, by judicial consideration outside the instrument.

• Potential dispute vectors embedded in the mechanics: The instrument defines several mechanics where factual and legal disagreement could arise. For example, "reference salary" is defined in relation to the relevant principal determination (s 6; s 14). Disputes may turn on what components of total remuneration are included in that principal determination, though no judicial treatment is recorded here. Similarly, the conversion rule for credits accrued prior to appointment (s 9) is contingent on an office holder having "elected to resign under another employing Act" and having "not received payment in lieu", which may produce questions about timing, election formalities and whether a payment in lieu had been offered or inadvertently missed.

Practitioners should therefore treat the instrument as a clear statement of entitlements but without any internal case law or litigation precedent supplied in the text. Where interpretive uncertainty exists, the route to resolution is standard administrative or judicial processes under Commonwealth law, not a body of decisions reflected in the instrument. Any records of litigation or dispute resolution must be sought outside the text of this determination.

This short instrument contains several points that commonly generate administrative error or misinterpretation. The list below identifies discrete text‑based traps with references so practitioners can check the precise wording.

• Coverage depends on principal determinations: The instrument applies only to persons holding offices covered by two named principal determinations (s 7). Whether an individual is covered thus depends on those other instruments. A common mistake is to assume the instrument applies to any public office; instead, confirm coverage by reference to the applicable principal determination.

• Agency policies cannot provide additional recreation leave: While agencies must administer leave using their own policies (s 12(1)), those policies do not apply to an office holder to the extent they have the effect of providing recreation leave additional to the leave under this instrument (s 12(4)). Agencies may inadvertently extend entitlements via local policy; the instrument expressly prohibits that.

• Deeming on leave exception for specified statutory offices: Agency policies’ "deeming on leave" provisions otherwise apply (s 12(3)(b)), but they do not apply to holders of a specified statutory office (s 12(5)). That carve‑out means agencies must apply different administrative rules depending on the classification of the office holder.

• Approval authority may be unclear and defaults to Minister: Approval to take leave must be by the person, authority or body who, under a law of the Commonwealth, may grant leave other than recreation leave to the holder of that office (s 13(a)). If that law does not specify a relevant authority, the Minister with portfolio responsibility for the relevant office is the approving authority (s 13(b)). Practically, that can cause delays if agencies assume an internal delegate has authority when the underlying law designates a different entity, or if the legal authority is unspecified and Ministerial approval is required.

• "Reference salary" is not necessarily total remuneration: Payment in lieu must be calculated using the reference salary, defined as total remuneration less the employer superannuation contribution (s 6; s 14). A common error is to calculate cash‑outs or leave pay against total remuneration inclusive of superannuation components rather than the reference salary the instrument prescribes.

• Conversion of prior credits requires a specific sequence: Section 9 requires that the office holder, on or after appointment, elects to resign under the other employing Act and has not received payment in lieu; only then are prior credits taken to have accrued under this instrument on the day of resignation (s 9(1)-(2)). If an office holder receives a payment in lieu under the earlier employing Act, the conversion will not apply. Administrative mistakes during recruitment and onboarding can therefore affect entitlements.

Compliance divides into two streams: requirements for agencies and payroll/HR teams who administer leave, and steps for office holders and their advisers at appointment and during service. The instrument assigns duties and leaves operational detail to agency policy; the steps below are grounded in the text and intended to produce a defensible administrative approach.

For agencies and payroll/HR

1. Confirm coverage: Before applying the instrument, verify whether the office is a "relevant office" by checking whether it falls within the Remuneration Tribunal (Remuneration and Allowances for Holders of Full‑time Public Office) Determination 2018 or the Remuneration Tribunal (Specified Statutory Offices,Remuneration and Allowances) Determination 2018, or any superseding instrument (s 7). Do not assume general public servants are covered.

2. Recordkeeping on accruals: Implement or verify systems to accrue four weeks’ recreation leave per completed 12 months, with pro rata accrual for partial periods (s 8(1)). Ensure payroll systems record both the quantum and dates of accrual so that conversion rules and past entitlements can be applied precisely.

3. Pay rate configuration: Configure payroll to pay recreation leave at the office holder’s normal weekly salary when leave is taken (s 8(2)). Separately, configure the calculation for any payment in lieu to use the office holder’s reference salary, where reference salary equals total remuneration less employer superannuation contribution as defined in the relevant principal determination (s 14; s 6).

4. Convert prior credits at appointment where applicable: Where an appointee has elected to resign under another Commonwealth employing Act and has not received payment in lieu for recreation leave credits, treat those credits as having accrued under this instrument on the day of resignation and with their original accrual dates (s 9(1)-(2)). Require documentation of the resignation election and proof that no payment in lieu was made under the prior employment.

5. Recognise prior Tribunal entitlements: Ensure any entitlements accrued under earlier Tribunal determinations are recognised as entitlements under this instrument (s 10). Reconcile legacy records and migrate balances into current systems.

6. Align agency policies without exceeding the instrument: Apply agency annual/recreation leave policies and, where relevant, SES policies to office holders (s 12(1)-(2)). Review those policies to ensure none have the effect of providing recreation leave in excess of the instrument’s entitlements (s 12(4)). Where policies address limitations on credits, deeming on leave, sickness on leave and cashing out, document consistent application (s 12(3)). For specified statutory office holders, do not apply agency deeming on leave provisions (s 12(5)).