Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 2) (Cth)

Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 2)

I, FIONA LOUISE McSPEERIN, Assistant Secretary, People Policy and Employment Conditions, make the following Determination under section 58B of the Defence Act 1903.

Dated 9 June 2023

Fiona Louise McSpeerin

Assistant Secretary
People Policy and Employment Conditions
Defence People Group

Contents

1  Name........................................................................................................................................ 1

2  Commencement........................................................................................................................ 1

3  Authority.................................................................................................................................. 1

4  Schedules................................................................................................................................. 1

Schedule 1—ADF leave reform  2

Defence Determination 2016/19, Conditions of service  2

Schedule 2—Consequential amendments  16

Defence Determination 2016/19, Conditions of service  16

Schedule 3—Transitional and savings provisions  20

1  Name

This instrument is the Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 2).

2  Commencement

1.       Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
The whole of this Instrument.	1 July 2023.

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

2.       Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

This instrument is made under section 58B of the Defence Act 1903.

4  Schedules

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—ADF leave reform

Defence Determination 2016/19, Conditions of service

1	Section 1.3.1
Insert:
Dual serving couple means two members of the Defence Force who are partners of each other.
Family and Domestic violence means violent, threatening or other abusive behaviour by a close relative of a member, a member of the member’s household, or a current or former intimate partner of the member, that does any of the following.
a.	It seeks to coerce or control the member or a member of their household.
b.	It causes the member harm or to be fearful or a member of their household.
Service tribunal has the same meaning given in the Defence Force Discipline Act 1982.
2	Subsection 3.2.14.2
Omit “and attending for”, substitute “to attend for duty, and to be attending that duty”.
3	Subparagraph 3.2.14.2.a.i
Repeal the subparagraph, substitute:
i.	They commence a rest or recovery period immediately after completing an arduous or prolonged period of duty.
4	Paragraph 3.2.14.2.b
Repeal the paragraph, substitute:
b.	The member is not engaged in any form of work, paid or otherwise, during the period of rest and recovery.
5	Chapter 5 (at the end of the heading)
Add “and absences”.
6	Section 5.1.1A (definition of Senior officer who transitioned)
Repeal the definition, substitute:
Senior officer who transitioned means a member who meets all of the following.
a.	They hold a rank specified in items 2 or 3 in Schedule 1 of the Act.
b.	They have been transferred to a pool position.
c.	They are required to undertake activities that support their resignation, retirement or transfer to the Reserves.
7	Section 5.1.2
Repeal the section.
8	Subsection 5.4.8.1
Omit “20”, substitute “25”.
9	Subsection 5.4.8.3
Repeal the subsection, substitute:
3.	Fortnightly leave credits for a member not subject to a flexible service determination are calculated using the following formula.
Where:
A	is the number of calendar days in a fortnight of non-effective service.
4.	Fortnightly leave credits for a member subject to a flexible service determination are calculated using the following formula.
Where:
A	is the number of hours in a fortnight in the member’s pattern of service.
B	is the number of hours in a fortnight of non-effective service.
10	Division 4 of Part 4 of Chapter 5
Omit the division.
11	Section 5.4.31
Repeal the section, substitute:

5.4.31    How leave may be taken

Recreation leave may be taken in any of the following ways.
a.	If the member is not on a flexible service determination, any of the following.
i.	A full day of recreation leave at full pay.
ii.	A half day of recreation leave at full pay.
iii.	A part day of recreation leave if the remaining day is taken as war service leave.
b.	If the member is on a flexible service determination, any of the following.
i.	The period of duty specified in the member’s flexible service determination for the day in the member’s pattern of service.
ii.	Half the period of duty specified in the member’s flexible service determination for the days of the member’s pattern of service.
12	Section 5.4.32
Repeal the section, substitute:

5.4.32    Taking recreation leave

1.

A member is eligible to take recreation leave if their supervisor is satisfied of the following.

a.

The member has leave credits to cover the period of leave at the end of the pay fortnight in which the member ceases to be on leave.

b.

The member’s absence from duty will not adversely affect capability.

2.

A supervisor must not approve a member to take leave if the member is a senior officer who transitioned and the total amount of recreation leave to be taken in their transition period is more than 2 weeks.

3.

In this section, supervisor means a person who meets one of the following.

a.

They are in the member’s chain of command and hold a minimum rank of Warrant Officer Class 2.

b.

They are in the member’s line management and hold a minimum APS classification of APS 4.

13          

Section 5.4.33

Repeal the section.

14          

Subsection 5.4.33A.1

Repeal the subsection, substitute:

1.

A member’s leave credits are reduced if any of the following apply.

a.

They have taken recreation leave.

b.

They have been directed not to attend for duty for the purpose of reducing the member’s excess leave credits.

Note: The direction to take leave is an exercise of command power.

1A.

Leave credits for a member not subject to a flexible service determination are reduced for each day on which leave is taken in accordance with the following.

a.

If a full day of leave is taken at full pay — by one day.

b.

If a half day of leave is taken at full pay — by 4 hours.

Note:     Section 5.4.31 details how leave may be taken at less than a full day.

1B.

Leave credits for a member subject to a flexible service determination are reduced for each day on which leave is taken in accordance with the following.

a.

If a full day of leave is taken at full pay — by the number of hours in the member’s pattern of service on that day.

b.

If a half day of leave is taken at full pay — by half of the number of hours in the member’s pattern of service for that day.

Note:     Section 5.4.31 details how leave may be taken at less than a full day.

15          

After 5.4.33A.2

Insert:

3.

In this section, excess leave credits means having more than 50 recreation leave credits.

16          

Division 5 of Part 5 to Chapter 5 (heading)

Repeal the heading, substitute:

Division 5: Payment for, and transfer of, long service leave credits

17	Section 5.5.24
Repeal the section, substitute:
18	Section 5.5.25
Repeal the section.

5.5.24    Member this Division does not apply to

This Division does not apply to a member who does any of the following without a break in service.
a.	They cease service as an enlisted member to become an officer.
b.	They cease service as an officer to become an enlisted member.

5.5.25    Eligibility for a payment

A member, including a former member, is eligible for payment instead of long service leave if one of the following apply.
a.	They cease continuous full-time service and are eligible for long service leave credits under section 5.5.8.
b.	They have served at least 1 year of effective service and cease continuous full-time service because their service in the Defence Force is terminated for one of the following reasons.
i.	They are medically unfit for service in the Defence Force.
ii.	They cannot usefully serve because of redundancy in the Defence Force.
c.	They have served at least 1 year of effective service and cease continuous full-time service because they have reached the latter of the following.
i.	They have reached their retirement age.
ii.	They are no longer allowed to serve beyond their retirement age.
d.	They have served at least 1 year of effective service and cease continuous full-time service in connection with receiving a special benefit under Chapter 2 Part 3 Division 3.
e.	Before ceasing continuous full-time service they are diagnosed with a terminal-illness and the CDF is satisfied that making the payment is reasonable in the circumstances.
19	Section 5.5.26 (heading)
Repeal the heading, substitute:

5.5.26    Calculation of the payment

20	Subsection 5.5.26.6 (formula)
After “officer during their transition period”, insert “ officer before becoming a senior officer who transitioned”.
21	Section 5.5.28
Repeal the section.
22	Section 5.8.1
Repeal the section, substitute:

5.8.1    Purpose

War service leave is an additional leave benefit to provide relief from an operational area for a member who is on warlike service. It also allows them to adjust to living back in Australia and to recover from the demands of that service.
23	Division 2 of Part 9 to Chapter 5
Repeal the Division, substitute:

Division 2: Personal leave

5.9.8    Purpose

Personal leave is available to members who needs to attend to any of the following.
a.	Personal matters of a compassionate nature.
b.	Urgent personal matters if no other form of paid leave is appropriate.

5.9.9    Eligibility for personal leave

1.	A member is eligible for personal leave if the CDF is satisfied of all of the following.
a.	The personal leave is for one of the following.
i.	A compassionate reason.
ii.	To attend to an urgent personal matter.
iii.	There are exceptional circumstances that are in the interest of the ADF that warrant the granting of leave.
b.	Granting the member personal leave is reasonable in the circumstances.
2.	In this section, compassionate reason means any of the following.
a.	One of the following applies to a close relative.
i.	They are seriously ill.
ii.	They are very seriously ill.
iii.	They have died.
b.	The member’s or their partner’s pregnancy ends other than by birth.
c.	The member or a person in their household has been subject to family and domestic violence.

5.9.10    Limitations on personal leave

1.	A member cannot be granted personal leave if any of the following apply.
a.	They have previously had personal leave for the same factual circumstances unless the CDF is satisfied it is reasonable to grant a second period of leave.
b.	The period of leave is for less than one of the following periods.
i.	If the member is not subject to a flexible service determination — half a day.
ii.	If the member is subject to a flexible service determination — half the member’s pattern of service on the day.
c.	The leave is in relation to family and domestic violence and the CDF is satisfied that the member is the perpetrator of the violence.
d.	The leave is in relation to the ending of a pregnancy and any of the following apply.
i.	The member has had a medical absence in relation to the ending of the pregnancy
ii.	The member is eligible for maternity leave in relation to the pregnancy.
e.	The leave is for attending to an urgent personal matter and all of the following apply.
i.	The use of recreation leave for the absence from duty would be more appropriate.
ii.	The member has sufficient recreation leave to cover the absence from duty.
24	At the end of paragraph 5.9.12.3.a
Add:
Note:     The number of days of carer’s leave may be reduced by section 5.9.12B if the member is a part of a dual service couple.
25	Subsection 5.9.12.4
Repeal the subsection.
26	After section 5.9.12
Insert:

5.9.12A    Additional carer’s leave

A member is eligible for additional carer’s leave if all for the following apply.
a.	They have used all of their carer’s leave benefit under section 5.9.12.
b.	They are required to care for and support their close relative who is sick or injured, or affected by an unexpected emergency.
c.	The CDF is satisfied that the additional carer’s leave is reasonable having regard to the following.
i.	Other forms of paid leave available to the member.
ii.	Alternative carer arrangements.

5.9.12B    Additional carer’s leave – dual serving couples

1.

This section applies to a member who is a part of a dual serving couple.

Note:     This section does not prevent a member in a dual serving couple from being eligible for additional carer’s leave under section 5.9.12A.

2.

A member (the first member) is eligible for additional carer’s leave if all for the following apply.

a.

They have used all of their carer’s leave benefit under section 5.9.12.

b.

They are required to care for and support their close relatives who is sick or injured, or affected by an unexpected emergency.

c.

Their partner (the second member) has a benefit to carer’s leave under section 5.9.12.

d.

The CDF is satisfied that the second member cannot return to the first member’s location to provide the required care.

3.

The number of days of additional carer’s leave available to the first member is 10 days.

27          

Division 5 of Part 9 to Chapter 5

Repeal the Division.

28          

Division 6 of Part 9 to Chapter 5

Repeal the Division.

29          

Division 7 of Part 9 to Chapter 5

Repeal the Division.

30          

Division 8 of Part 9 to Chapter 5

Repeal the Division.

31          

After section 5.10.5

Insert:

5.10.5A    Leave without pay to attend a court or tribunal proceeding

1.

This section applies to a member who is appearing in civilian court or tribunal proceedings for a person other than the Commonwealth.

Note:     A member appearing for the Commonwealth is on duty and is not required to take leave.

2.

A member is eligible for leave without pay to attend a court or tribunal proceeding if all of the following apply.

a.

The member has not been approved a short absence under section 5.11.30 to attend the court or tribunal proceedings.

b.

The CDF is satisfied that it is reasonable in the circumstances.

32          

Division 1 of Part 11 to Chapter 5 (Heading)

Omit “from duty”, substitute “for rest and recovery”.

33          

Section 5.11.3

Repeal the section, substitute:

5.11.3    Purpose

Short absence for rest and recovery provides a member with the opportunity to rest and recover from long or arduous periods of duty.

Note:     A member of the Reserves on reserve days may be eligible for salary to rest and recover from long or arduous periods of duty if they meet the requirements of section 3.2.14.

34          

Section 5.11.4

Repeal the section.

35          

Subsection 5.11.5.1

Repeal the subsection, substitute:

1.

A member is eligible for up to 5 consecutive days’ short absence if the CDF is satisfied that the member needs to rest and recover from a period of long or arduous period of duty.

36          

Subsection 5.11.5.2

Repeal the section.

37          

Subsections 5.11.7.3 and 5.11.7.4

Repeal the subsections.

38          

After Division 2 of Part 11 to Chapter 5

Insert:

Division 2A: Short absence – not required for duty

5.11.10A    Purpose

A short absence when not required for duty provides members with a type of short absence from duty outside of normal working hours.

5.11.10B   Short absences – not required for duty

A member is on a short absence for a period outside of their normal working hours if all of the following apply.
a.	They are not required for duty.
b.	They are not under a restriction imposed by a Service tribunal that requires them to be on duty outside of normal working hours.
Note:     Normal working hours are normally identified in the member’s unit’s standing orders or shift roster.
39	After Division 4 to Part 11 of Chapter 9
Insert:

Division 5: Short absence ­– examination attendance

5.11.19    Short absence to attend an exam

1.

A member is eligible for a short absence if the CDF is satisfied that the member needs to be absent from duty for any of the following.

a.

To attend an examination in connection with a course of study they are undertaking.

Note:     The period of the short absence is the duration of the examination only.

b.

For local travel to and from the examination venue.

2.

A member cannot take more than 40 hours of short absence under this Division in a financial year.

3.

In this section, course of study means a course to which any of the following apply.

a.

The member receives assistance with the payment of the course fees under the Defence Assisted Study Scheme.

b.

The member has one of the following loans to pay their student contribution amount for the course

i.

FEE-HELP.

ii.

VET student loan.

c.

The member is in a Commonwealth supported place.

Note:     A member who is in a Commonwealth supported place may use HECS-HELP to pay their course fees or pay the course fees upfront.

5.11.20    Limitations

A short absence under this Division cannot be taken on any of the following days.

a.

A weekend.

b.

A public holiday.

c.

A day on which the member is taking a type of leave.

Note:     This does not prevent the member from taking another form of short absence on the same day.

Division 6: Short absence – travel

5.11.21    Purpose

Short absence for travel is available to members who are granted specific types of travel or leave and have to travel for longer than 12 hours to reach their destination.

5.11.22    Member this Division applies to   

This Division applies to a member who meets one of the following.
a.	They are traveling on any of the following benefits.
i.	Recreation leave travel in Australia
ii.	Compassionate travel.
iii.	Pre-deployment leave travel.
iv.	Travel for removal purposes within Australia.
b.	They are serving overseas and meet all of the following.
i.	They travel to Australia at their own expense.
ii.	They are on personal leave for a compassionate reason.
iii.	They were overseas before commencing the travel.
Note:     Serving overseas includes short-term duty overseas, a long-term posting overseas and overseas deployments
c.	They are on a deployment and travel to Australia using relief out-of-country travel fare assistance under Chapter 17 Part 7 Division 4.

5.11.23    Short absence for a travel

1.	A member is eligible for a short absence when they arrive at any of the following locations if the duration of the travel is more than 12 hours.
a.	Their destination.
b.	If the member has travelled to Australia at their own expense — the place where they are serving overseas.
2.	The number of days of short absence a member is eligible for under subsection 1 for a travel period in an item in column A of the following table is the number of days in column B of the same item.

Item	Column A Travel period (hours)	Column B Number of days of short absence
1.	12 or more but less than 36	1 day
2.	36 or more but less than 60	2 days
3.	60 or more but less than 84	3 days
4.	84 or more but less than 108	4 days
5.	108 or more but less than 132	5 days
6.	132 or more but less than 144	6 days

3.	The number of days of short absence is reduced by 1 for each day the short absence falls on any of the following.
a.	A Saturday.
b.	A Sunday.
c.	A public holiday.
Note:     The number of days of short absence cannot be less than zero.

5.11.24    Calculation of the duration of travel

For the purpose of section 5.11.23, the duration of travel is measured using the following.
a.	If the travel is within Australia — the number of hours the member would travel by most economical means, as defined in Chapter 9 Part 1, between the place or origin and the destination.
b.	If the leave destination is within Australia but not connected by a commercial flight or a rail service — the shortest journey time of a scheduled coach service.
c.	If the travel is between an overseas location and Australia — the number of hours the member would travel by most economical means, as defined in Chapter 9 Part 1, between the following locations.
i.	If the member is travelling to Australia — from the time of departure from the overseas location to the time of entering the first port of call in Australia.
ii.	If the member is travelling from Australia — from the time of departure from Australia to the time of entering the overseas location.

5.11.25    Limitations for members serving in the Navy

1.

This section applies to a member of the Navy who travels on recreation leave travel.

2.

A member is only eligible for a short absence for travel that is more than 48 hours long once in a financial year.

Note:     This does not prevent the member from being granted a short absence more than once in a financial year for travel that is less than 48 hours.

Division 7: Short absence – pre-deployment

5.11.26    Purpose

Pre-deployment leave allows a member going on duty to a prescribed area overseas to finalise their personal affairs and make their farewells before they leave Australia.

5.11.27    Short absence before a deployment

1.	A member is eligible for up to 7 days of short absence if all of the following apply.
a.	It is expected the member will be in one of the following areas for a minimum of 6 months.
i.	An operational area.
ii.	A defined area approved by the Minister.
b.	If the member is a member of the Reserves on continuous full-time service, their continuous full-time service commences more than 12 weeks before the member is expected to deploy.
c.	The CDF is satisfied that the short absence is reasonable having regard to the operational situation.
2.	The number of days of short absence is reduced by 1 for each day the short absence falls on any of the following.
a.	A Saturday.
b.	A Sunday.
c.	A public holiday.
Note:     The number of days of short absence cannot be less than zero.

5.11.28    When short absence before a deployment can be taken

A short absence under this Division must be taken within the greater of the following periods before the member is expected to deploy.
a.	6 weeks.
b.	A greater period set by the CDF.

Division 8: Short absence – civilian court proceedings

5.11.29    Member this Division applies to   

This Division applies to a member who is appearing in a civilian court or tribunal proceedings for a person other than the Commonwealth.

Note:     A member appearing for the Commonwealth is on duty and is not required to take leave.

5.11.30    Short absence for court appearances

The member is eligible for a short absence to attend a civilian court or tribunal proceeding if the CDF is satisfied that it is reasonable in the circumstances.

Note:     The CDF may also grant leave without pay in these circumstances under section 5.10.6

Division 9: Short absence – command directed

5.11.31    Purpose

The purpose of a command directed short absence is to enable commanders to direct members within their unit to not attend for duty for any of the following purposes.
a.	To maintain unit effectiveness.
b.	To maintain the health and welfare of members of the unit.

5.11.31    Short absence directed by command  

A member is eligible for a short absence on a day the member has been directed to not attend for duty for any of the following reasons.
a.	To maintain unit effectiveness.
b.	To maintain the health and welfare of members of the unit.
Note:     Failure to follow a direction may result in disciplinary action under the Defence Force Discipline Act 1982.

Schedule 2—Consequential amendments

Defence Determination 2016/19, Conditions of service

1            

Section 1.3.5 (table item 1)

Omit “compassionate leave” (wherever occurring), substitute “personal leave for compassionate reasons”,

2            

Subsection 3.2.14.3

Repeal the subsection.

3            

At the end of section 3.2.14

Add:

Note:     A member of the Reserves not of continuous full-time service is eligible for salary under DFRT Determination, 2017 No. 2 if they are required to attend for and attend that duty.

4            

Paragraph 4.1.5.1.c

Omit “from duty”.

5            

Paragraph 4.4.13.1.a

Omit “period of travelling leave”, substitute “short absence for travelling”.

6            

Paragraph 4.4.35.3.a

Repeal the paragraph.

7            

At the end of section 4.4.35

Add:

Note:     Short absence for travel provided under this Division may be available under Chapter 5 Part 11 Division 6.

8            

Paragraph 5.2.2.d

Repeal the subsection, substitute:

d.

Personal leave for compassionate reasons.

9            

Section 5.4.6 (definition of field service)

Repeal the definition and substitute:

Field service means service during which the member is required to undertake duty and live in the field including during any of the following.

a.

Peacetime training

b.

Periods of warlike service

c.

Periods of non-warlike service

d.

Field exercises

e.

Field operations

f.

Activities similar to the above

10          

Section 5.4.6 (definition of flight duties)

Repeal the definition and substitute:

Flight duties means duties performed aboard a Service aircraft for the purposes of an operation on which the aircraft is engaged that are not parachute duties.

11          

Subsection 5.4.33A.2 (table item 3)

Omit “extra recreation leave,”.

12          

Paragraph 5.4.37.2.a

Omit “travelling leave”, substitute “a short absence for travel”.

13          

Section 5.4.42 (definition of accrued leave credit)

After “Extra recreation leave” insert “as granted under this determination before 1 August 2023.

Note:     Extra recreation leave was repealed by Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2022 (No. 2)”

14          

Paragraph 5.8.6.2.d

Repeal the paragraph.

15          

Subsection 7.1.23.4

Repeal the subsection.

16          

At the end of section 7.1.23

Add:

Note:     For travel under this Division, short absence for travel may be available under Chapter 5 Part 11 Division 6.

17          

Paragraph 9.1.3.4.b

Omit “travelling leave”, substitute “short absence for travel”.

18          

Subsection 9.3.49.3

Omit “Compassionate leave”, substitute “Personal leave for a compassionate reason”.

19          

Subsection 9.3.56.1

Omit “Compassionate leave”, substitute “Personal leave for a compassionate reason”.

20          

Subsection 9.3.56.2

Repeal the subsection.

21          

Subsection 9.3.56.3

Omit “compassionate leave”, substitute “personal leave for a compassionate reason”.

22          

Subsection 9.3.57.3

Repeal the subsection.

23          

At the end of section 9.3.57

Add:

Note:     Short absence for travel is not available for travel by private vehicle.

24          

Section 9.4.16

Omit “pre-deployment leave”, substitute “a short absence – pre-deployment”.

25          

Paragraph 9.4.17.1.a

Repeal the paragraph, substitute:

a.

The member has been granted a short absence – pre-deployment.

26          

Subparagraph 9.4.19.b.ii

Repeal the subparagraph, substitute:

ii.

The member's need for travel is consistent with purpose of a short absence – pre-deployment

27          

Paragraph 9.4.21.1.a

Omit “pre-deployment leave”, substitute “a short absence – pre-deployment”.

28          

Section 14.4.15 (note 2)

Repeal the note.

29          

Section 17.7.20

Repeal the section.

30          

Subsection 17.7.23.4

Repeal the subsection.

31          

At the end of section 17.7.23

Add:

Note:     Short absence for travel provided under this Division may be available under Chapter 5 Part 11 Division 6.

Schedule 3—Transitional and savings provisions

1	Interpretation
In this Schedule, Defence Determination means the Defence Determination 2016/19, Conditions of service, as in force immediately before the commencement of this Determination.
2	Savings – approved leave
A member who had been approved to take, or is on, one of the following types of leave under the Defence Determination on the commencement of this Determination continues to be eligible to take that leave as though this Determination had not commenced.
a.	Compassionate leave.
b.	Examination leave.
c.	Travelling leave.
d.	Pre-deployment leave.
e.	Leave to attend civilian court proceedings.
3	Savings – grant of extra recreation leave
1.	Division 4 of Part 4 to Chapter 5 of the Defence Determination continues to apply to a member if the grant of extra recreation leave is made in relation to service provided between 1 July 2022 and 30 June 2023.
2.	This section ceases to apply on 1 August 2023.
4	Transitional – extra recreation leave
1.	This section applies to extra recreation leave credits that have been granted.
2.	From 1 July 2023, a day of extra recreation leave granted under section 5.4.20 of the Defence Determination that has not been used is a recreation leave credit.