EXPLANATORY STATEMENT

Defence Determination 2016/16

This Determination amends Defence Determination 2005/15, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 (the Defence Act) and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AIA Act). Determinations made under section 58B of the Defence Act are disallowable non-legislative instruments and are subject to the interpretation principles in the AIA Act, as modified by section 58B of the Defence Act.

The following Chapters of the Principal Determination set out provisions dealing with benefits for eligible members of the Australian Defence Force (ADF).

• Chapter 3 sets out provisions dealing with retention and completion benefits.
• Chapter 5 sets out provisions dealing with conditions of.

This Determination has the following two purposes.

• This Determination amends the eligibility provisions for the ADF gap year educational bonus to restrict access to members who completed their gap year with the ADF before 1 January 2013.
• Defence Force Remuneration Tribunal Determination No. 15 of 2015, ADF Allowances – Recruit Instructor - Amendment, introduced two new allowances that replace the ageing recruit instructor bonus scheme provided under section 58B of the Defence Act 1903. The two new allowances together yield a higher rate of payment to the ADF member than under the recruit instructors scheme. This Determination includes references to the recruit instructor disability allowance and the recruit instructor sustainability allowance into tables which provide the payment of the allowances during periods of leave.

Clause 1 of this Determination sets out the manner in which this Determination may be cited.

Clause 2 of this Determination provides that the Determination commences 5 May 2016.

Clause 3 specifies that the amendment is made to the Principal Determination, as amended.

Clause 4 substitutes the cross reference to clause 3.5.46 of the Principal Determination, which defines the term gap year. The clause corrects the cross reference, so that it points to the current source of policy information about the gap year program.

Clause 5 amends one of the eligibility conditions for payment of the ADF gap year bonus payment. The payment was formerly paid to a member who completed their gap year, who then re-enlists with certain prescribed qualifications. The amendment limits the payment to members who completed their gap year in the original program before 1 January 2013.

The original gap year program ran from 2007 to 2012. The scheme fell into abeyance and was restarted in 2015. The 2007-2012 and 2015-onwards gap-year programs had different target participants. The earlier participants did not join the ADF at the end of their gap year and were encouraged to seek further education, and then reenlist with a bonus to reward them for doing so. Current program participants have the necessary minimum education before they are recruited and the goal is for them to transfer to ongoing ADF service without a break. Instead of leaving the ADF to qualify, the members in the current program remain in the ADF and become eligible for higher rates of salary as they advance in rank and seniority in their employment category.

Clause 6 of this Determination inserts new items 7A. and 7B. into the table in subsection 5.2.30.1 of the Principal Determination. This table sets out the allowances that are payable to a member during a period of recreation leave. The new items refer to the recruit instructor disability allowance and the recruit instructor sustainability allowance, respectively, and both point to DFRT Determination No. 11 of 2013.

Clause 7 of this Determination inserts new items 7A. and 7B. into the table in subsection 5.3.23.1 of the Principal Determination. This table sets out the allowances that are payable to a member during a period of long service leave. The new items refer to the recruit instructor disability allowance and the recruit instructor sustainability allowance, respectively, and both point to DFRT Determination No. 11 of 2013.

Clause 8 of this Determination provides a transitional provision for members who were eligible to receive the payment of the recruit instructors disability allowance or the recruit instructors sustainability allowance from 10 March 2016. The transitional provides that a member who was on an approved period of recreation leave or long service leave during the period of 10 March 2016 and 5 May 2016, is eligible for the payment of the relevant allowance during that period had the amendments in clauses 6 and 7 of this Determination been in force on 10 March 2016.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system. A person may make a complaint to the Defence Force Ombudsman.

Authority:  Section 58B of the
Defence Act 1903

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Defence Determination 2016/16, ADF gap year – educational bonus – amendment

This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Determination

This Determination amends Defence Determination 2005/15, Conditions of Service.

This Determination has the following two purposes.

• This Determination amends the eligibility provisions for the ADF gap year educational bonus to restrict access to members who completed their gap year with the ADF before 1 January 2013.
• This Determination includes references to the recruit instructor disability allowance and the recruit instructor sustainability allowance into tables which provide the payment of the allowances during periods of leave.

Human rights implications

Right to the enjoyment of just and favourable conditions of work

The protection of a person's right to remuneration engages Article 7 of the International Covenant on Economic, Social and Cultural Rights. Article 7 guarantees just and favourable conditions of work, including remuneration, safe and healthy conditions, equal opportunity and reasonable limitations.

The original gap year program ran from 2007 to 2012. The scheme fell into abeyance and was restarted in 2015.

The 2007-2012 and 2015-onwards gap-year programs had different target participants. The earlier program was aimed at young people who would not otherwise have considered a military career, to give them a "taste" of life in the ADF. Those participants were perhaps not ready for standard ADF recruitment but were encouraged to seek tertiary qualifications to make them an attractive prospect for later enlistment. The education bonus recognised the efforts of those members who achieved the qualification and chose to reenlist.

The current program seeks participants who already have the education levels needed for specific trade groups being targeted. The program aims to transfer as many gap year participants as possible to other forms of ongoing ADF service during or at the completion of the gap year. The education bonus has become redundant. ADF members have access to a sophisticated training system so that an ADF member's skills and professionalism can develop during their service. Instead of a bonus, members continue in service and gain increased salary in the employment categories for their trade, consistent with paragraph 7(c) of the International Covenant on Economic, Social and Cultural Rights.

Defence Force Remuneration Tribunal Determination No. 15 of 2015, ADF Allowances – Recruit Instructor – Amendment, introduced two new allowances that replace the aging recruit instructor bonus scheme provided under section 58B of the Defence Act 1903. The two new allowances together yield a higher rate of payment to the ADF member than under the recruit instructors scheme. This determination includes these two allowances into the provisions which allow for the payment of these allowances during periods of leave.

A transitional provision has been included in the determination to provide for the payment of the two new allowances during a period of recreation leave or long service leave that a member may have taken during the period from 10 March 2016 to 5 May 2016. This ensures that members who were eligible for the payment of the allowances during their period of leave receives the relevant amount they would have received had the amendments in clauses 6 and 7 Determination been in force from 10 March 2016.

Conclusion

This Determination is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Tyson Paul Sara, Director General People Policy and Employment Conditions