Defence Determination 2016/26, Flexible service determination

Administered by Department of Defence

Legislation au F2016L01131 Not in force Legislative Instrument

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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

 

 

 

Overview

The Defence Determination 2016/26, made under section 58B of the Defence Act 1903, amends the Defence Determination 2005/15 to establish the conditions of service for Australian Defence Force (ADF) members under a flexible service determination. The Defence Act 1903 was enacted by the Australian Parliament to provide for the defence of the Commonwealth and its interests. The Defence Legislation Amendment (First Principles) Act 2015 introduced the concept of flexible service, which refers to any service other than full-time service, aiming to better cater to the needs of ADF members and the ADF itself. This Determination, effective from 1 July 2016, addresses the administrative gaps by providing a fair and reasonable conditions package for members who opt for part-time service, aligning with the flexible service determination policy. The policy objective is to ensure that members on flexible service receive conditions of service proportionate to their hours of work or more favourable conditions, facilitating better work-life balance and personal development.

Scope and Application

Defence Determination 2016/26 applies to Permanent Forces members within the Australian Defence Force (ADF) who have been issued a flexible service determination by the Chief of the Defence Force (CDF) under section 23 of the Defence Act 1903. This Act specifies conditions for service that are anything other than full-time, allowing for varying periods or patterns of service based on the member's and the ADF's needs. The Determination regulates the administration of pay and conditions of service for these members, ensuring they receive remuneration and benefits that are either in proportion to their hours worked or more generous. This includes the provision of part-time leave without pay, which describes the nature of part-time work undertaken by ADF members. The Determination, which commenced on 1 July 2016, is subject to the interpretation principles in the Acts Interpretation Act 1901, as modified by section 58B of the Defence Act, and is a disallowable legislative instrument under the Legislation Act 2003. The scope of this Determination is national, extending across the Commonwealth of Australia, and is designed to be compatible with human rights, particularly the right to just and favourable conditions of work as recognised under the International Covenant on Economic, Social and Cultural Rights.

Key Provisions

The Defence Determination 2016/26 amends Defence Determination 2005/15, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 (the Defence Act). It sets out the administration of pay and conditions of service for Permanent Forces members who have been issued a flexible service determination by the Chief of Defence Force (CDF) under section 23 of the Defence Act 1903, introduced by the Defence Legislation Amendment (First Principles) Act 2015 on 1 July 2016 (sections 1-5). A flexible service determination allows members of the Australian Defence Force (ADF) to serve in any pattern other than full-time service, such as part-time service, which may vary depending on the member's and ADF's needs. The Determination introduces a new Chapter 2 Part 1A into the Principal Determination, setting out the administrative conditions that apply to Permanent Forces members on a flexible service determination. These conditions ensure that members receive salary and conditions of service in proportion to the hours they work, or more generous, as if they were on part-time leave without pay (section 5). The Determination imposes obligations on the parties it governs, primarily the Australian Defence Force and its members, to adhere to the specified conditions of service for those on a flexible service determination. This includes ensuring that the pay and conditions of service provided to these members are fair and reasonable, reflecting their part-time status. The Determination is designed to balance the needs of the ADF with the personal circumstances of its members, allowing them to provide part-time service while maintaining their entitlements (section 5). It also ensures that Defence is able to administer these flexible service determinations effectively from 1 July 2016, pending the development of specific rules to be implemented after the caretaker period (section 5). Failure to comply with the conditions of service set out in the Defence Determination 2016/26 could result in various civil or criminal consequences, although specific penalties are not detailed within the Determination itself. The Defence Act 1903 and other relevant legislation may outline penalties for breaches of service conditions, which could include fines or other sanctions. The Defence Determination 2016/26 is a legislative instrument and, as such, it is subject to the Legislation Act 2003, which may provide for enforcement mechanisms and penalties for non-compliance. It is important for all parties to adhere to the conditions of service to avoid any potential legal repercussions (sections 1-5).

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.