EXPLANATORY STATEMENT
Defence Determination 2016/26
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 legislative instruments subject to the Legislation Act 2003. These instruments are also subject to the interpretation principles in the AIA Act, as modified by section 58B of the Defence Act.
Chapter 2 of the Principal Determination sets out provisions dealing with conditions relating to career progression for members of the Australian Defence Force (ADF).
The purpose of this Determination is to set out the administration of pay and conditions of service for Permanent Forces members for whom the CDF has made a flexible service determination under section 23 of the Defence Act 1903, which is to be introduced by the Defence Legislation Amendment (First Principles) Act 2015 on 1 July 2015. Flexible service is anything other than full-time service. The period or pattern of service may vary depending on the member's and ADF's needs.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 of this Determination provides that the Determination commences on 1 July 2016.
Section 3 specifies that the amendment is made to the Principal Determination, as amended.
Section 4 substitutes the title of Chapter 2 of the Principal Determination. The Chapter was formerly called "Joining and leaving the ADF." The title is being changed to "ADF career." This reflects the changed focus of the Chapter.
Section 5 inserts a new Chapter 2 Part 1A into the Principal Determination. The new Part sets out the administrative conditions that apply to a Permanent Forces member who has a flexible service determination. These determinations are non-legislative instruments. They specify the pattern of service of a member, or a group or class of member, who is approved to provide service that is not full-time service in the ADF.
Conditions of service for members who are on a flexible service determination are in proportion to the hours they work, or more generous.
The Part has one section, section 2.1A.1. It provides that the member receives salary and conditions of service as if the member was on part-time leave without pay. Part-time leave without pay is the term used to describe the nature of part-time work undertaken by ADF members of the Permanent Forces.
In making this Determination, the rule-maker has taken the Caretaker Conventions into account. This is a temporary measure to enable Defence to administer flexible service determinations from 1 July 2016, consistent with the flexible service determination policy approval. Defence is developing specific rules for the administration of flexible service determinations to be implemented after the caretaker period.
Consultation
Extensive consultation was undertaken in the development of flexible service determination policy, including the changes to the Defence Act 1903. Agencies consulted include the Departments of Treasury, Finance, Veteran's Affairs and Prime Minister and Cabinet, the Australian Government Solicitor and the Australian Government Actuary.
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 2016/26, Flexible service determination
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 2016/19, Conditions of service.
The purpose of this Determination is to set out the administration of pay and conditions of service for Permanent Forces members for whom the CDF has made a flexible service determination under section 23 of the Defence Act 1903, introduced by the Defence Legislation Amendment (First Principles) Act 2015 on 1 July 2016. Flexible service is anything other than full-time service. The period or pattern of service may vary depending on the member's and ADF's needs.
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, rest, leisure and reasonable limitation of working hours.
This Determination provides the administration of conditions of service to members who are on a flexible service determination, that are in proportion to the hours they work, or more generous. It allows members to give part-time service while receiving a fair and reasonable conditions package. Part-time service may be chosen by members in many situations including to have more time for parenting responsibilities, to pursue study or other personal goals, or to wind down before retirement.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Lisa Annette Arnold, Acting Assistant Secretary People Policy and Employment Conditions