EXPLANATORY STATEMENT

Defence Determination 2016/42

This Determination amends Defence Determination 2016/19, 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.

For the purpose of adopting Defence Force Remuneration Tribunal (DFRT) determinations, being instruments other than a legislative instrument, section 58B(1A) of the Defence Act provides a contrary intention to section 14(2) of the Legislation Act 2003. Section 58B(1A) of the Defence Act permits DFRT determinations, as in force from time to time, being adopted in this determination in accordance with section 14(1)(b) of the Legislation Act 2003.

This Determination amends the following Chapters of the Principal Determination.

• Chapter 3 sets out provisions dealing with salaries and bonuses for members of the Australian Defence Force (ADF).
• Chapter 5 sets out provisions dealing with leave for members of the ADF.
• Chapter 6 sets out provisions dealing with relocations on posting in Australia for members of the ADF.
• Chapter 7 sets out provisions dealing with housing and meals for members of the ADF.
• Chapter 9 sets out provisions dealing with travel costs in Australia for members of the ADF.
• Chapter 10 sets out provisions dealing with clothing and personal effects for members of the ADF.
• Chapter 15 sets out provisions dealing with living and working on long-term posting overseas for members of the ADF.
• Chapter 16 sets out provisions dealing with overseas hardship locations for members of the ADF.

This Determination has the following purposes.

• Increase the value of recreation leave credits transferred to a Commonwealth entity.
• Extend the period for the Medical Officers professional development financial support scheme.
• Clarify living-in accommodation contribution provisions and uniform allowance relating to trainees.
• Provide vehicle allowance to members posted to Woomera and travelling to the airport at Olympic Dam on remote location leave travel.
• To clarify the extent of a reunion travel benefit.
• To clarify policy intent for the definition of compulsory tuition fees.
• Remove OP FIJI ASSIST 2016 from the qualifying period provisions for hardship allowance.
• To correct some minor technical and typographical errors that were overlooked when remaking the Principal Determination.

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 12 January 2017.

Section 3 provides that this instrument has authority under section 58B of the Defence Act 1903.

Section 4 specifies that the amendment is made to the Principal Determination, as amended.

Section 5 amends table item 1 of paragraph 3.2.7.3.c of the Principal Determination, which provides the method for calculating the pro rata amount for language proficiency allowance (as determined by the Defence Force Remuneration Tribunal (DFRT) Determination No. 14 of 1992, Language allowance, as in force from time to time). DFRT Determination No. 9 of 2016, Language proficiency allowance – amendment, changed the name of this allowance on 1 December 2016 to ‘language allowance’. Section 5 of this Determination reflects this name change in the Principal Determination.

Section 6 amends subsection 3.5.84.2 of the Principal Determination, which provides that the Medical Officer professional development financial support scheme ceases on 30 June 2017. Section 6 extends the scheme to 30 June 2022 in accordance with the renewed funding line for this scheme.

Section 7 amends the exception in subsection 5.3.10.3 of the Principal Determination to correct a typographical error.

Section 8 amends subsection 5.4.22.2 of the Principal Determination, which provides the name of the form a member must use when applying to purchase additional recreation leave. This amendment removes three paragraphs that were inadvertently duplicated from subsection 5.4.22.1 in the making of the Principal Determination, and were not applicable to this subsection.

Section 9 amends subsection 5.4.34 of the Principal Determination which sets out the provisions for the expiration of recreation leave credits. This determination inserts four subsections that were inadvertently omitted in the making of the Principal Determination. Subsections 2 and 3 provide that the CDF may defer the expiration of a member's leave credit. Subsection 4 provides that decisions relating to the CDF's leave credit may be made by the Minister. Subsection 5 provides that a member who holds a statutory appointment and is eligible for their leave to be treated as recreation leave under Part 4, is not eligible to have the leave credited as special leave under Part 9 Division 4.

Section 10 omits an exception from subsection 5.4.37.1 of the Principal Determination, which provided that a daily rate of flying disability allowance is payable during a period of recreation leave. In 2013 the Defence Force Remuneration Tribunal (DFRT) restructured flying allowance provisions through DFRT Determination No. 11 of 2013, ADF Allowances. A significant change involved moving a number of flying related activities that previously attracted a daily rate of the allowance, to become flying related activities that would attract annual rates of payment. A consequence of this change in the ADF Allowances determination meant that the remaining on occurrence activities with a daily rate of the allowance should no longer be paid during periods of recreation leave under the Principal Determination, and the exception to subsection 5.4.37.1 should have been removed at that time. The members previously covered by the exception to the rule in subsection 5.4.37.1 are now covered by the rule itself (5.4.37.1). While this amendment to the Principal Determination was overlooked, the organisational practices were properly adjusted and the daily rate of flying disability allowance has not been paid during periods of recreation leave since the commencement of the ADF Allowances determination. The change made by section 10 of this determination makes the required amendment in the Principal Determination and accords with current organisational practice.

Section 11 substitutes subsection 5.4.43.3 of the Principal Determination, which provides that when a member leaves the permanent Defence Force and moves to a Commonwealth entity they may choose to transfer their recreation leave credits to that entity, on approval from that entity. This provision was made available to ADF members from 21 July 2014 and provided that at the point of transfer, the recreation (annual) leave credits were transferred along with 95% of the monetary value of those credits.

While the Public Governance, Performance and Accountability Act 2013 is silent on provisions relating to the transfer of annual leave credits between Commonwealth entities, the Department of Finance was given policy authority by the then Finance Minister to continue applying the provisions of regulation 33 of the repealed Financial Management and Accountability Regulations 1997 for Commonwealth entities. This previous regulation provided for transfer of annual and long service leave credits in conjunction with 100% of the monetary value of annual leave credits and 95% of the monetary value of long service leave credits. Section 11 of this determination increases the monetary value of the recreation (annual) leave credits transferred from Defence to a Commonwealth entity to 100% in accordance with the previous Finance Minister’s approval of continued application of the repealed regulation 33 for Commonwealth entities.

Section 12 omits an exception from subsection 5.5.23.1 of the Principal Determination, which provided that a daily rate of flying disability allowance is payable during a period of long service leave. In 2013 the Defence Force Remuneration Tribunal (DFRT) restructured flying allowance provisions through DFRT Determination No. 11 of 2013, ADF Allowances. A significant change involved moving a number of flying related activities that previously attracted a daily rate of the allowance, to become flying related activities that would attract annual rates of payment. A consequence of this change in the ADF Allowances determination meant that the remaining on occurrence activities with a daily rate of the allowance should no longer be paid during periods of long service leave under the Principal Determination, and the exception to subsection 5.5.23.1 should have been removed at that time. The members previously covered by the exception to the rule in subsection 5.5.23.1 are now covered by the rule itself (5.5.23.1). While this amendment to the Principal Determination was overlooked, the organisational practices were properly adjusted and the daily rate of flying disability allowance has not been paid during periods of long service leave since the commencement of the ADF Allowances determination. The change made by section 12 of this determination makes the required amendment in the Principal Determination and accords with current organisational practice.

Section 13 amends subsection 6.5.60.4 of the Principal Determination. When the Principal Determination was remade, subsection 6.5.60.4 was reworded to replace the word 'entitled' with 'eligible'. This rewording unintentionally changed the intent of the subsection and is now unclear as to what the member is eligible for. The intent of this subsection is to provide that a member who has items in storage when they cease continuous full-time service can have these items removed at Commonwealth expense to a residence within 12 months of the member ceasing service. Section 13 of this Determination makes clear what benefit is being provided.

Section 14 amends table item 1 of subsection 7.4.6.2 of the Principal Determination, which provides a quick reference guide to conditions relating to a licence to live in. This Determination amends an incorrect cross reference within table item 1.

Section 15 amends subsection 7.4.24.5 of the Principal Determination, which prescribes the rate of contribution that a trainee pays towards living-in accommodation. The term trainee has slightly different meanings across Defence. This change makes explicit what rates apply to members who are paid salary under Schedule B.13 of DFRT Determination No.15 of 2008, Salaries, and removes any administration ambiguity that may exist. That schedule prescribes salary rates for trainees. This change does not affect any living-in allowance contribution levels. It has been made to reflect changes made in Annex 7.4.B of the Principal Determination by section 17.

Sections 16 and 17 vary the table in Annex 7.4.B of the Principal Determination. The table sets the rates of contribution that members pay towards living-in accommodation. Descriptions of the members covered by two of the items have changed, without changing eligibility or rates of contribution. The changes have been made to resolve administrative ambiguity.

• Section 16 amends item 2 of the table in Annex 7.4.B of the Principal Determination. The item does not cover members who are trainees. The description has changed to reflect the change made by section 17.
• Section 17 amends item 5 of the table in Annex 7.4.B of the Principal Determination. The term trainee has been replaced by a category of member paid salary under Schedule B.13 of DFRT Determination No.15 of 2008, Salaries. That schedule prescribes salary rates for trainees.

Section 18 inserts a new example in subsection 9.3.31.2 of the Principal Determination, which provides that the Commonwealth will pay for a member's dependants to visit the member at the posting location, up to what it would have paid for the member to visit the dependants. This is known as 'reverse reunion travel'. There was some confusion around the amount that was transferred when a member transferred their reunion travel benefit. The new example clearly outlines how members can use a reunion travel benefit towards the total cost of multiple dependants' travel.

Section 19 amends subsection 9.4.32.3 of the Principal Determination, which provides the maximum amount that may be paid to a member when they offset their remote location leave travel benefit to another destination. A new paragraph 9.4.32.3.c has been included to provide that a member may be paid vehicle allowance when they have to travel by private vehicle from Woomera to the closest airport at Olympic Dam. The payment of this allowance is in addition to the cost of return air fare travel that the member may offset. The payment of vehicle allowance will alleviate the financial burden on members that is caused due to the distance between Woomera and Olympic Dam and the lack of public transport available between these two locations.

Section 20 amends paragraph 9.4.32.5.c of the Principle Determination. Subsection 9.4.32.5 provides the amount payable to a member when they offset their remote location leave travel benefit towards a holiday package tour is the lesser of three specified costs. One of the specified costs is the actual cost of a package tour under paragraph 9.4.32.5.c. This paragraph is being amended to include the conditions that the package tour must contain a commercial travel component to the destination, it must be purchased from an accredited individual or corporation and that the components of a tour package are not costed separately. A note has also been included to provide that a package tour can be commercially available or individually tailored.

Section 21 inserts a new section 9.4.40A into the Principal Determination. The new section provides that a member who is posted to Woomera and is eligible for remote location leave travel under schemes A and B may be paid vehicle allowance when they have to travel by private vehicle between Woomera and the closest airport at Olympic Dam. The payment of this allowance is in addition to the cost of return air fare travel that the member eligible for under schemes A and B of remote location leave travel. The payment of vehicle allowance will alleviate the financial burden on members that is caused due to the distance between Woomera and Olympic Dam and the lack of public transport available between these two locations.

Section 22 substitutes table item 1 of the table in subsection 10.1.4.1 of the Principal Determination. The table sets rates of uniform allowance paid to members in various categories. One of the categories of member described at item 1 was trainees. The term trainee has been replaced by a requirement that a member be paid salary under Schedule B.13 of DFRT Determination No.15 of 2008, Salaries. That schedule prescribes salary rates for trainees. This change does not affect any uniform allowance levels. It has been made to resolve administrative uncertainty.

Section 23 amends table item 6 of section 15.2.7.2 of the Principal Determination, which sets out the annual allowance rates for calculating the disposable income for ADF members. Language proficiency allowance (as determined by DFRT Determination No. 14 of 1992, Language allowance, as in force from time to time) is one of the included annual allowances. DFRT Determination No. 9 of 2016, Language proficiency allowance – amendment, changed the name of this allowance on 1 December 2016 to ‘language allowance’. Section 22 of this Determination reflects this name change in the Principal Determination.

Section 24 amends the table in section 15.6.4 of the Principal Determination, which provides definitions for terms used in the Part. There was some confusion regarding the definition of 'compulsory tuition fees' where it is described that "other fees and charges" are a component. Some took this to include non-tuition related fees and charges. Section 24 clarifies that it is only tuition-related fees and charges that fit the definition of compulsory tuition fees.

Section 25 omits subsection 16.2.3.3 from the Principal Determination. Subsection 16.2.3.3 provided conditions for the payment of hardship allowance for members deployed on OPERATION FIJI ASSIST (whole of Government contribution to the international humanitarian assistance and recovery effort in Fiji). This Operation ceased on 22 April 2016 and this subsection is no longer required; no members will be affected by the removal of this subsection.

Consultation

The Treasury was consulted in relation to the transfer of recreation leave credits to another Commonwealth entity.

Consultation is not considered necessary in the making the other changes made by this Determination as it makes minor amendments and technical adjustments.

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 2016/42, Leave, housing, travel, uniform allowance, overseas education assistance and hardship allowance – 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 has the following purposes.

• Increase the value of recreation leave credits transferred to a Commonwealth entity.
• Extend the period for the Medical Officers professional development financial support scheme.
• Clarify living-in accommodation contribution provisions and uniform maintenance allowance relating to trainees.
• Provide vehicle allowance to members posted to Woomera and travelling to the airport at Olympic Dam on remote location leave travel.
• To clarify the extent of a reunion travel benefit.
• To clarify policy intent for the definition of compulsory tuition fees.
• Remove OP FIJI ASSIST 2016 from the qualifying period provisions for hardship allowance.
• To correct some minor technical and typographical errors that were overlooked when remaking the Principal Determination.

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 protection of a person's right to care for dependants

The protection of a person's right to care for dependants engages Article 10 of the International Covenant on Economic, Social and Cultural Rights. Article 10 guarantees the widest possible protection and assistance to families, including their responsibility for the education and care of dependent children.

Transfer of recreation leave credits to another agency

Legitimate objective: Employees of Commonwealth entities are able to transfer their recreation leave credits between entities when they move from one to another. ADF members are also able to transfer their accrued recreation leave credits when they leave ADF service and gain employment with a Commonwealth entity, conditional on the agreement of the new entity.

Reasonable, necessary and proportionate: This Determination amends the value amount of the recreation leave credits the member can transfer to a new Commonwealth entity from 95% to 100%. This increase is inline with regulation 33 of the Financial Management and Accountability Regulations 1997 and ensures that the full value of the leave credits is transferred to the Commonwealth entity.

This change does not affect the amount of recreation leave that the member transfers to their new Commonwealth entity, the member is still entitled to the full amount of unused recreation leave they accrued during their service. This change only affects the monetary value of the recreation leave credits transferred to the new entity.

Reunion travel

Legitimate objective: The ADF is a very geographically dispersed organisation, with need to travel to both major cities and rural areas. The reason for travel affects the amount of assistance the Commonwealth will provide the member for their travel.

Reasonable, necessary and proportionate: Defence has interests across Australia, and travel by members is necessary to achieve Defence goals. Defence travel arrangements ensure that members are able to meet Defence's complex travel requirements in a way that is economical. This Determination protects this right by clarifying policy to assist people to better understand and apply benefits, and so they are able to better assess the relative fairness and adequacy of their benefits. It provides a clearer prescription of travel benefits available to members for various types of travel.

Remote location leave travel

Legitimate objective: ADF members who are posted to some remote locations that may experience adverse living conditions during service. This could cause significant adverse effect on the lifestyle or welfare of members and their dependants, as a result of the living conditions at the remote location. Those hardship conditions can include but are not limited to climate, health care facilities, infrastructure and isolation.

Reasonable, necessary and proportionate: Remote location leave travel assists members, and their dependants, posted to remote locations to travel at Commonwealth expense to locations that will give relief from the climate and isolated conditions of the remote location, and also to access facilities that may not be available in the location. This determination provides additional assistance to members who are posted to Woomera by providing vehicle allowance for the journey between Woomera and the airport at Olympic Dam.

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.

Lisa Annette Arnold, Acting Assistant Secretary People Policy and Employment Conditions