Defence Determination, Conditions of service Amendment (Employment Offer Modernisation) Determination 2023 (No. 4) (Cth)
Defence Determination, Conditions of service Amendment (Employment Offer Modernisation) Determination 2023 (No. 4)
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—Bonus framework 2
Defence Determination 2016/19, Conditions of service 2
Schedule 2—Savings provisions 14
1 Name
This instrument is the Defence Determination, Conditions of service Amendment (Employment Offer Modernisation) Determination 2023 (No. 4).
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Note: this table relates only to the provisions of this instrument as originally made.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Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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—Bonus framework
Defence Determination 2016/19, Conditions of service
| 1 | After Chapter 3 Part 2 |
| Insert: |
Part 3: Bonuses
Division 1: General provisions
Sub-division 1: Interpretation
3.3.1 Purpose
| This Part provides bonuses to attract and retain members who are capability critical to the ADF. |
3.3.2 Definitions
| In this Part the following apply. | |
| Agreed period of service means the number of days of effective service the member agrees to serve in connection with a bonus under this Chapter. | |
| Bonus amount means the amount of money specified in a valid offer. | |
| Bonus condition means one of the following | |
| a. | If the bonus is a category A bonus, a condition specified in section 3.3.14. |
| b. | If the bonus is a category B bonus, a condition specified in section 3.3.18. |
| Call out order means continuous full-time service under a call out order under Division 3 of Part III of the Act. | |
| Commencement day of an agreed period of service has the meaning given in section 3.3.3. | |
| Effective service has the meaning given in subdivision 2. | |
| Valid acceptance has the meaning given in section 3.3.5. | |
| Valid offer has the meaning given in section 3.3.4. | |
3.3.3 Commencement day of an agreed period of service
| The commencement day of a member’s agreed period of service is the latter of the following days. | ||
| a. | The day specified in the offer. | |
| b. | If a member is under any of the following service obligations, the day after the service obligation ends. | |
| i. | An initial minimum period of service. | |
| ii. | A return of service obligation. | |
| iii. | An undertaking for further service under another bonus. Note: This includes an undertaking for further service under Part 8 of the Military Superannuation and Benefits Act 1991, as preserved by item 4 of Schedule 4 Defence Legislation Amendment Act (No. 1) 2005. | |
3.3.4 Valid offer
| A valid offer of a bonus is an offer that meets all of the following. | ||
| a. | It is made on the approved form. | |
| b. | It specifies that the bonus is one of the following. | |
| i. | A retention bonus. | |
| ii. | A completion bonus. | |
| c. | It specifies the bonus condition. Note 1: The bonus condition for a category A bonus is specified in section 3.3.14. Note 2: The bonus condition for a category B bonus is specified in section 3.3.18. | |
| d. | It specifies a bonus amount that does not exceed the amount payable that applies to the bonus category. Note 1: The maximum bonus amount for a category A bonus is specified in section 3.3.12. Note 2: The maximum bonus amount for a category B bonus is specified in section 3.3.16. | |
| e. | It specifies an agreed period of service that is within the period that applies to the bonus category. Note 1: The agreed period of service limits for a category A bonus is specified in section 3.3.13. Note 2: The agreed period of service limits for a category B bonus is specified in section 3.3.17. | |
| f. | It specifies an indicative day on which the member will commence serving the agreed period of service. Note: The commencement date may be altered if the member is completing an undertaking for further service in relation to another benefit, however described. | |
| g. | If it is being made to a member of the Reserves for Reserve service, it specifies the member’s pattern of reserve service. | |
| h. | It specifies the date that the offer must be accepted by. | |
3.3.5 Valid acceptance
| A valid acceptance of an offer means an acceptance that meets all of the following. | |
| a. | It is made on the approved form. |
| b. | It is made on or before a day specified in the valid offer. |
| c | It includes an election on how the bonus is to be paid. |
Subdivision 2: Effective service
3.3.6 Effective service – member on continuous full time service
| 1. | This section applies to a member who meets all of the following. | |
| a. | They are on continuous full-time service, other than a member of the reserves performing continuous full-time service solely for the purpose of a call out order. | |
| b. | They are not subject to a flexible service determination. | |
| 2. | A member provides effective service on all of the following days. | |
| a. | A day for which the member is paid salary. Note: This includes a day of paid leave. | |
| b. | A day on which the member is on unpaid leave that is before the 21st day in a period of unpaid leave. | |
| 3. | Despite subsection 2, a member does not provide effective service on a day in which any of the following apply. | |
| a. | They are in custody. | |
| b. | They are in detention. | |
| c. | They are imprisoned. | |
| 4. | Effective service is calculated in accordance with the following. | |
| a. | A day for which the member receives full pay — 1 day. | |
| b. | A day on which the member receive half pay — half a day. | |
| c. | A day on which the member is on unpaid leave — 1 day. Note: A member ceases to provide effective service on the 21st day of unpaid leave. | |
3.3.7 Effective service – member subject to a flexible service determination
| 1. | This section applies to a member who is subject to a flexible service determination. | |||
| 2. | A member provides effective service on any of the following days. | |||
| a. | A day in the member’s pattern of service for which the member is paid salary. Note: This includes a day of paid leave. | |||
| b. | A day on which the member is on unpaid leave that is before the 21st day in a period of unpaid leave. | |||
| 3. | Despite subsection 2, a member does not provide effective service on a day in which any of the following apply. | |||
| a. | They are in custody. | |||
| b. | They are in detention. | |||
| c. | They are imprisoned. | |||
| 4. | The number of days of effective service a member performs in a fortnight is calculated using the following formula and must not exceed 14 days. | |||
| Where: | ||||
| A | is the sum of the following. | |||
| i. | Each full day of duty in the member’s pattern of service in the fortnight. | |||
| ii. | Each combination of part days of duty in the member’s pattern of service in the fortnight that add up to eight hours. | |||
3.3.8 Effective service – member on Reserve service
| 1. | This section applies to a member of the Reserves not on continuous full-time service, other than under a call out order. | ||
| 2. | A member provides effective service on any of the following days. | ||
| a. | A day on which the member provides Reserve service. | ||
| b. | A day on which the member is on call out order. | ||
| 3. | Despite subsection 2, a member does not provide effective service on a day in which any of the following apply. | ||
| a. | They are in custody. | ||
| b. | They are in detention. | ||
| c. | They are imprisoned. | ||
| 4. | A day on which the member provides effective service is 1 day of effective service. Note: This section applies regardless of the number of hours the member serves on the day. | ||
Sub-division 3: Application
3.3.9 Member this Part applies to
| This Part applies to the following members. | |
| a. | A member on continuous full-time service. |
| b. | A member of the Reserves on reserve service. |
3.3.10 Member this Part does not apply to
| This part does not apply to a member who meets any of the following on the day the offer of a bonus is made to the member. | ||
| a. | The member has a Medical Employment Classification of J5. | |
| b. | The member has less than 1 year to serve until the end of the member's fixed period of service. | |
| c. | The member has less than 1 year to serve until the later of the following days. | |
| i. | The day the member reaches retirement age. | |
| ii. | The last day that the member has been given a direction allowing them to serve beyond their retirement age. Note: A direction allowing a member to serve beyond their retirement age is made under section 23 of the Defence Regulation. | |
| d. | The member has been given a notice for the purpose of termination under one of the following and a decision on that notice has not been made. | |
| i. | Section 100 of the Act. | |
| ii. | Subsection 24(2) of the Defence Regulation. | |
Division 2: Category A Bonus
3.3.11 Eligibility for a category A bonus
| 1. | A member is eligible for a category A bonus if all of the following apply. | |||
| a. | The CDF does all of the following. | |||
| i. | They believe the member is critical to capability. | |||
| ii. | If making an offer to a member of the Reserves not on continuous full-time service, they are satisfied that the requirements of subsection 2 are satisfied. | |||
| iii. | They make a valid offer for a category A bonus to the member. | |||
| iv. | If the offer must be accepted on a date other than 28 days after the offer was made or 28 days after the day the member returns to Australia after a deployment, set a day the offer must be accepted by. | |||
| b. | The member makes a valid acceptance of the offer. | |||
| c. | On the day of accepting the offer, the member is expected to be able to complete the agreed period of service for the bonus before any of the following. | |||
| i. | The last day of their fixed period of service. | |||
| ii. | If the member has not been given a direction allowing them to work beyond their retirement age, the day they reach their retirement age. | |||
| iii. | The last day they are allowed to serve beyond the member’s retirement age. Note: A direction allowing a member to serve beyond their retirement age is made under section 23 of the Defence Regulation. | |||
| 2. | If the member is a member of the Reserves, all of the following apply. | |||
| a. | The member is able to complete the agreed period of service before the end of their period of service in the Reserve. | |||
| b. | The capability cannot be reasonably met by any of the following. | |||
| i. | A member of the Permanent Forces. | |||
| ii. | A member of the Reserves on continuous full-time service. | |||
| iii. | A member of the Reserves on Reserve service without an offer of a bonus. | |||
3.3.12 Category A bonus – bonus amount
| The bonus amount for a category A bonus must not exceed $200,000. |
3.3.13 Category A bonus – agreed period of service
| The agreed period of service for a category A bonus must be one of the following. | |
| a. | If the member is in the Permanent Forces — a specified number of days of effective service between 1 and 5 years. |
| b. | If the member is in the Reserves — a minimum of 20 days of effective service each year for between 1 and 5 years. |
3.3.14 Category A bonus – bonus condition
| The bonus condition for a category A bonus means one of the following. | ||
| a. | The specified position in which the member is to complete their agreed period of service. | |
| b. | The primary skill the member must maintain during their agreed period of service. | |
Division 3: Category B Bonus
3.3.15 Eligibility for a category B bonus
| 1. | A member is eligible for a category B bonus if all of the following apply. | ||
| a. | The CDF does all of the following. | ||
| i. | They believe the member is in a critical employment category or an at risk employment category. | ||
| ii. | They are satisfied that there are no inconsistencies in the application of the bonus for similar workgroups across the ADF. | ||
| iii. | If making an offer to a member of the Reserves not on continuous full-time service, they are satisfied that the requirements of subsection 2 are satisfied. | ||
| iv. | They make a valid offer for a category B bonus to the member. | ||
| v. | If the offer must be accepted on a date other than 28 days after the offer was made or 28 days after the day the member returns to Australia after a deployment, set a date the offer must be accepted by. | ||
| b. | The member makes a valid acceptance of the offer. | ||
| c. | On the day of accepting the offer, the member is expected to be able to complete the agreed period of service for the bonus before any of the following. | ||
| i. | The last day of their fixed period of service. | ||
| ii. | If the member has not been given a direction allowing them to work beyond their retirement age, the day they reach their retirement age. | ||
| iii. | The last day they are allowed to serve beyond the member’s retirement age. Note: A direction allowing a member to serve beyond their retirement age is made under section 23 of the Defence Regulation. | ||
| 2. | If the member is a member of the Reserves, all of the following apply. | ||
| a. | The member is able to complete the period of duty required before the end of their period of service in the Reserve. | ||
| b. | The capability cannot be reasonably met by any of the following. | ||
| i. | A member of the Permanent Forces. | ||
| ii. | A member of the Reserves on continuous full-time service. | ||
| iii. | A member of the Reserves on Reserve service without an offer of a bonus. | ||
3.3.16 Category B bonus – bonus amount
| The bonus amount for a category B bonus must not exceed $100,000. |
3.3.17 Category B bonus – agreed period of service
| The agreed period of service for a category B bonus must be one of the following. | |
| a. | If the member is in the Permanent Forces — a specified number of days of effective service between 1 and 3 years. |
| b. | If the member is in the Reserves — a minimum of 20 days of effective service each year for between 1 and 3 years. |
3.3.18 Category B bonus – bonus condition
| The bonus condition for a category B bonus means one of the following. | |
| a. | The employment category in which the member is to complete their agreed period of service. |
| b. | The primary skill the member must maintain during their agreed period of service. |
Division 4: Payment, recovery and cessation of a bonus
3.3.19 Payment of a retention bonus
| 1. | This section applies to a bonus that is a retention bonus. | ||
| 2. | The bonus amount is payable to a member in accordance with the following. | ||
| a. | If the member has chosen to receive the bonus amount in 1 payment — from the first pay day after the commencement of the agreed period of service as specified in the valid offer. Note: If the commencement of the agreed period of service is changed as a consequence of paragraph 3.3.3.b, payment of the bonus remains the commencement day as specified in the offer. | ||
| b. | If the member chooses to receive the bonus amount in 2 payments the payments are made at the following times. | ||
| i. | The first payment, being 50% of the bonus amount — from the first pay day after the commencement of the agreed period of service as specified in the valid offer. Note: If the commencement of the agreed period of service is changed as a consequence of paragraph 3.3.3.b, payment of the bonus remains the commencement day as specified in the offer. | ||
| ii. | The second payment, being 50% of the bonus amount — from the first pay day a year after the first payment is made. | ||
| 3. | If a member chose to receive the bonus amount in 2 payments ceases to be a member before the second payment becomes payable, the second payment is payable from the day the member ceases to be a member. Note: If the member ceases to be eligible for the bonus, the second payment may not be payable. | ||
3.3.20 Payment of a completion bonus
| 1. | This section applies to a bonus that is a completion bonus. | ||
| 2. | The bonus amount is payable to a member at one of the following times. | ||
| a. | If the member has chosen to receive the bonus amount in 1 payment — from the first pay day after the completion of the agreed period of service. | ||
| b. | If the member chooses to receive the bonus amount in 2 payments the payments are made at the following times. | ||
| i. | The first payment, being 50% of the bonus amount — from the first pay day after the completion of the agreed period of service. | ||
| ii. | The second payment, being 50% of the bonus amount — from the first pay day a year after the first payment is made. | ||
| 3. | If a member chose to receive the bonus amount in 2 payments ceases to be a member before the second payment becomes payable, the second payment is payable from the day the member ceases to be a member. | ||
3.3.21 Repayment and cessation of a retention bonus
| 1. | This section applies to a member who has received a retention bonus and does not complete their agreed period of service for any of the following reasons. | |||
| a. | They voluntarily leave the position, employment category, or primary skill for which the bonus was offered. | |||
| b. | They voluntarily transfer to another Service of the Defence Force. | |||
| c. | If the member is in the Permanent Forces, they do any of the following. | |||
| i. | Voluntarily transfer to the Reserves. | |||
| ii. | Apply to change their period of service for the purpose of ending their service in the Permanent Forces before the completion of their agreed period of service. | |||
| d. | If the member is in the Reserves and they meets all of the following. | |||
| i. | Their bonus condition is to complete the agreed period of service in a specified position. | |||
| ii. | They voluntarily transfers to the Permanent Forces. | |||
| e. | Their service is terminated under any of the following. | |||
| i. | Under Part VIIIA of the Act. | |||
| ii. | Under section 24 of the Defence Regulation for a reason not in the interest of the Defence Force relating to performance. | |||
| f. | They are discharged under the Defence Force Discipline Act 1982. | |||
| 2. | The member must repay one of the following amounts. | |||
| a. | If the member has completed 3 years or less of their agreed period of service — the bonus amount. | |||
| b. | If the member has completed more than 3 years of their agreed period of service — an amount calculated using the following formula. | |||
| Where: | ||||
| A | is the bonus amount paid. | |||
| B | is the number of days in the agreed period of service. | |||
| C | is the number of days between the following. | |||
| a. | The day after the event in subsection 1 occurred. | |||
| b. | The last day of the member’s agreed period of service. | |||
| 3. | The member ceases to be eligible for any unpaid part of the bonus amount. | |||
3.3.22 Cessation of eligibility for a completion bonus
| 1. | This section applies to a member who is eligible for a completion bonus and does not complete their agreed period of service for any of the following reasons. | ||
| a. | They voluntarily leave the employment category for which the bonus was offered. | ||
| b. | They voluntarily transfers to another Service of the Defence Force. | ||
| c. | If the member is in the Permanent Forces, they do any of the following. | ||
| i. | Voluntarily transfer to the Reserves. | ||
| ii. | Apply to change their period of service for the purpose of ending their service in the Permanent Forces before the completion of their agreed period of service. | ||
| d. | If the member is in the Reserves and they meet all of the following. | ||
| i. | Their bonus condition is to complete the agreed period of service in a specified position. | ||
| ii. | They voluntarily transfer to the Permanent Forces. | ||
| e. | Their service is terminated under any of the following. | ||
| i. | Part VIIIA of the Act. | ||
| ii. | Section 24 of the Defence Regulation for a reason not in the interest of the Defence Force relating to performance. | ||
| f. | They are discharged under the Defence Force Discipline Act 1982. | ||
| 2. | A member ceases to be eligible for the bonus amount. | ||
| 2 | Part 5 of Chapter 3 (heading) | ||
| Repeal the heading, substitute: | |||
Part 5: Reserve capability at short-notice
| 3 | Division 1 of Part 5 to Chapter 3 |
| Repeal the Division. | |
| 4 | Division 2 of Part 5 to Chapter 3 |
| Repeal the Division. | |
| 5 | Division 2A of Part 5 to Chapter 3 |
| Repeal the Division. | |
| 6 | Division 9 of Part 5 to Chapter 3 |
| Repeal the Division. | |
| 7 | Annex 3.5.B of Part 5 to Chapter 3 |
| Repeal the Annex. | |
| 8 | Annex 3.5.G of Part 5 to Chapter 3 |
| Repeal the Annex. | |
| 9 | Annex 3.5.J of Part 5 to Chapter 3 |
| Repeal the Annex. |
Schedule 2—Savings provisions
1 Definitions
| In this Schedule Defence Determination means Defence Determination 2016/19, Conditions of service, as in force immediately before the commencement of this Determination. |
2 Application
| This Schedule applies to a member who meets one of the following. | ||
| a. | They have been offered a bonus under one of the following before the commencement of this Determination and have not completed their agreed period of service for that bonus. | |
| i. | Chapter 3 Part 5 Division 2 of the Defence Determination. | |
| ii. | Chapter 3 Part 5 Division 9 of the Defence Determination. | |
| b. | They accepted an offer of a bonus under Chapter 3 Part 5 Division 2A of the Defence Determination before the commencement of this Determination and have not completed their period of duty for that bonus. | |
3 Savings
| 1. | In relation to a member who has accepted a bonus under Chapter 3 Part 5 Division 2 of the Defence Determination, Chapter 3 Part 5 Division 2 of the Defence Determination remains in force until the earlier of the following days. | |
| a. | The day the member completes their agreed period of service for the bonus. | |
| b. | The day the member leaves the scheme under section 3.5.14 of the Defence Determination. | |
| 2. | In relation to a member who has accepted a bonus under Chapter 3 Part 5 Division 2A of the Defence Determination, Chapter 3 Part 5 Division 2A of the Defence Determination remains in force until the earlier of the following days. | |
| a. | The day the member completes their period of duty for the bonus. | |
| b. | The day the member ceases to be eligible for the bonus under section 3.5.14F of the Defence Determination. | |
| 3. | In relation to a member who has accepted a bonus under Chapter 3 Part 5 Division 9 of the Defence Determination, Chapter 3 Part 5 Division 9 of the Defence Determination remains in force until the day the member completes their agreed period of service for the bonus. | |
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