Defence Determination 2017/12, Salaries – consequential

Administered by Department of Defence

Legislation au F2017L00375 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Defence Determination 2017/12

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 1 sets out provisions dealing with definitions and interpretation of concepts relevant to pay and conditions for members of the Australian Defence Force (ADF).
  • Chapter 3 sets out provisions dealing with salaries and bonuses for members of the ADF.
  • Chapter 4 sets out provisions dealing with allowances and reimbursements for members of the 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 15 sets out provisions dealing with living and working on long-term posting overseas for members of the ADF.

This Determination has the following purposes.

  • It makes consequential amendments to the Principal Determination resulting from changes made by DFRT Determination No. 1 of 2017, Defence Force Remuneration Tribunal Determinations – amendments. No. 1 of 2017 amends DFRT Determination No. 15 of 2008, Salaries, and DFRT Determination No. 11 of 2013, ADF Allowances. The rules relating to the payment and non payment of salary and salary related allowances are to be made under section 58H of the Defence Act, however, a number of these rules have been previously provided under the Principal Determination made under section 58B of the Defence Act. These rules have been moved to the Salaries and ADF Allowances determinations to provide greater certainty when dealing with the administration and payment of salary and allowances determined by the DFRT.
  • It makes consequential amendments to the Principal Determination resulting from the implementation of a new DFRT Principal Determination, DFRT Determination No. 2 of 2017, Salaries, which sets out the provisions for salary for members of the Australian Defence Force. This new Principal Determination replaces DFRT Determination No. 15 of 2008, Salaries, as amended.

Section 1 provides that this Determination is named Defence Determination 2017/12, Salaries – consequential, and sets out the manner in which this Determination may be cited.

Section 2 of this Determination provides that sections 1 to 5 and Schedule 1 of the Determination commence on 3 April 2017, and Schedule 2 of the Determination commences on 4 April 2017.

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


Section 4 provides that 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 makes the following changes to the Principal Determination consequential to DFRT Determination No. 1 of 2017, Defence Force Remuneration Tribunal Determinations – amendments.

  • Sections 1 and 2 amend section 1.3.16 of the Principal Determination, which sets out the definition of 'daily rate'. Section 1 amends the reference to section 3.2.7 by amending the title of that section, as substituted by section 10 of Schedule 1. Section 2 amends the reference for the calculation of a daily rate of an allowance determined by the DFRT to section A.1.7 of DFRT Determination No. 11 of 2013, ADF Allowances.
  • Section 3 substitutes section 1.3.25 of the Principal Determination, which sets out the definition of 'fortnightly rate'. Section 1.3.25 is being amended to reflect changes made to section 3.2.7 which has been substituted by section 10 of Schedule 1.
  • Section 4 substitutes section 1.3.67 of the Principal Determination, which sets out the definition of 'Reserve service'. The definition is being amended to reflect the terminology used in section 27 of the Defence Regulation 2016. Provisions relating to the payment of salary for members of the Reserves have been removed from this section as they are now located in clause A.1.5 of DFRT Determination No. 15 of 2008, Salaries. The provisions relating to the application of conditions of service provided under the Principal Determination have been removed as this information is currently provided under section 1.2.2 of the Principal Determination.
  • Section 5 inserts a new section 1.3.77A into the Principal Determination to provide a definition of 'unpaid leave'. Clause A.1.8 of DFRT Determination No. 15 of 2008, Salaries, provided that salary is not payable to a member when they are on a period of leave without pay. Since leave without pay is a defined term in the Principal Determination, this provision in clause A.1.8 did not apply to periods of unpaid maternity leave or unpaid parental leave. Clause A.1.8 has been amended by DFRT Determination No. 1 of 2017 to provide that salary is not payable to a member when they are on a period of unpaid leave. To ensure certainty in the application of the rule in clause A.1.8, a definition for 'unpaid leave' has been inserted into the Principal Determination to provide that leave without pay, unpaid maternity leave and unpaid parental leave are forms of unpaid leave.
  • Section 6 omits section 3.2.4 from the Principal Determination, which provided the rules for when salary was not payable to a member. These rules are now provided in DFRT Determination No. 15 of 2008, Salaries, and are no longer required in the Principal Determination.
  • Sections 7 and 8 amend section 3.2.5 of the Principal Determination, which provides the time for payment of salary for a member. Section 7 amends the title of the section to make it clear that the provision relates to members on continuous full-time service and not just members of the Permanent Forces. Section 8 amends the reference to where the rules are now located in DFRT Determination No. 15 of 2008, Salaries.
  • Section 9 substitutes section 3.2.6 of the Principal Determination, which provides the method of payment of salary for a member on continuous full-time service. The former subsection 3.2.6.2 is now subsection 3.2.6.1. A new subsection 3.2.6.2 provides that the payment of salary will be made by electronic funds transfer into a financial institution advised by the member. The former subsection 3.2.6.1, which provided that salary is worked out based on a seven day week, has been omitted from the section as this provision is included in section A.1.5 of DFRT Determination No. 15 of 2008, Salaries.
  • Section 10 substitutes section 3.2.7 of the Principal Determination, which provides the calculation and pro rating of salary and allowances. Section 3.2.7 has been amended to remove the rules for the calculation of salary and allowances made under section 58H of the Defence Act; these rules are now provided by section A.1.5 of DFRT Determination No. 15 of 2008, Salaries, and section A.1.7 of DFRT Determination No. 11 of 2013, ADF Allowances, respectively. The rules relating to the calculation of the fortnightly rate of allowances provided under the Principal Determination have been retained.

  • Section 11 omits section 3.2.11 from the Principal Determination, which provided the eligibility rules for the payment of salary for a member on Reserve service. These rules are now more appropriately provided under section A.1.9 of DFRT Determination No. 15 of 2008, Salaries, and are no longer required in the Principal Determination.
  • Sections 12, 13, 17, 23 and 26 amend a number of sections in the Principal Determination. These sections amend references consequential to the rules being removed from the Principal Determination and being provided in DFRT Determination No. 15 of 2008, Salaries.
  • Sections 14 and 15 amend section 3.2.17 of the Principal Determination, which provides the method of payment of salary for a member on Reserve service. Section 15 amends the title of the section by replacing the word 'frequency' with 'method', this change is to make it consistent with section 3.2.6 for members on continuous full-time service. Section 16 inserts a new subsection 3.2.17.3 to provide that the payment of salary will be made by electronic funds transfer into a financial institution advised by the member. This rule was previously provided in section 3.2.17A which has been omitted by section 16 of this Schedule.
  • Section 16 omits section 3.2.17A from the Principal Determination which provided the method of payment of salary and allowances to a member of the Reserves. This provision is now provided under subsection 3.2.17.3.
  • Section 18 amends a cross reference in section 4.1.20 of the Principal Determination, which provides the payment of higher duties. The cross reference is being amended to reflect the change in the title of the section made by section 10 of this Schedule.
  • Section 19 inserts a new section 5.1.2A into the Principal Determination, which sets out that allowances may be paid during a period of leave. The rules are subject to the conditions set out in the provisions for the allowances.
  • Section 20 substitutes section 5.4.37 of the Principal Determination, which provides for the payment of allowances during a period of recreation leave. The section has been amended to remove the list of allowances provided under DFRT Determination No. 11 of 2013, ADF Allowances. The rules relating to the payment of these allowances during a period of recreation leave are now provided by section A.1.7 of DFRT Determination No. 11 of 2013. The rule for the payment of other allowances during a period of recreation leave has been relocated to a general rule under section 5.1.2A, inserted by section 19 of this Schedule. The remaining rules in the section have remained unchanged.
  • Sections 21 and 22 amend section 5.5.23 of the Principal Determination, which provides for the payment of allowances during a period of long service leave. Section 21 substitutes subsection 5.5.23.1 to remove the list of allowances provided under DFRT Determination No. 11 of 2013, ADF Allowances. The rules relating to the payment of these allowances during a period of long service leave are now more appropriately provided by section A.1.7 of DFRT Determination No. 11 of 2013. Section 22 amends subsection 5.5.23.2 to remove reference to the list that has been omitted from subsection 5.5.23.1.
  • Section 24 substitutes section 5.8.8 of the Principal Determination, which provides for the payment of salary during a period of war service leave. The section has been amended to include a reference to the general rule under section 5.1.2A for the payment of salary and allowances during leave, which has been inserted by section 19 of this Schedule. The title of the section has also been amended to better reflect the rules provided in the section.
  • Sections 25 and 26 amend cross references in subsection 5.8.9.2 and subsection 5.8.10.2, respectively, of the Principal Determination. The cross references refer to the provisions for salary and allowances payable during a period of war service leave or when the member receives payment instead of war service leave. The rules for the payment of salary and allowances during a period of leave are now provided under section 5.1.2A, inserted by section 19 of this Schedule.

  • Section 27 omits section 5.9.6 from the Principal Determination, which provided for the payment of salary and allowances during a period of other leave with pay. These rules are now more appropriately provided by clause A.1.5 of DFRT Determination No. 15 of 2008, Salaries, section A.1.7 of DFRT Determination No. 11 of 2013, ADF Allowances, and section 5.1.2A of the Principal Determination and are no longer required in the Principal Determination.
  • Section 28 amends the note in section 5.10.26 of the Principal Determination, which sets out the effect a period of part-time leave without pay has on salary increments. The note is being amended to change the title of section 3.2.7, as substituted by section 10 of this Schedule.

Schedule 2 amends the Principal Determination consequential to the commencement of DFRT Determination No. 2 of 2017, Salaries, which is the new DFRT Principal Determination that authorises salary for members of the Permanent Forces and the Reserves. The sections within Schedule 2 substitute all references to the former salaries Principal Determination — DFRT Determination No. 15 of 2008, Salaries, with references to the new salaries Principal Determination — DFRT Determination No. 2 of 2017, Salaries.

Consultation

The Defence Force Remuneration Tribunal was consulted in relation to this Determination.

 

 

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 2017/12, Salaries – consequential

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.

  • It makes consequential amendments to the Principal Determination resulting from changes made by DFRT Determination No. 1 of 2017, Defence Force Remuneration Tribunal Determinations – amendments. No. 1 of 2017 amends DFRT Determination No. 15 of 2008, Salaries, and DFRT Determination No. 11 of 2013, ADF Allowances. The rules relating to the payment and non payment of salary and salary related allowances are to be made under section 58H of the Defence Act, however, a number of these rules have been provided under the Principal Determination made under section 58B of the Defence Act. These rules have been moved to the Salaries and ADF Allowances determinations to provide greater certainty when dealing with the administration and payment of salary and allowances determined by the DFRT.
  • It makes consequential amendments to the Principal Determination resulting from the implementation of a new DFRT Principal Determination, DFRT Determination No. 2 of 2017, Salaries, which sets out the provisions for salary for members of the Australian Defence Force. This new Principal Determination replaces Defence Force Remuneration Tribunal Determination No. 15 of 2008, Salaries, as amended.

Human rights implications

This Determination does not engage any applicable rights or freedoms. It simply aligns the Principal Determination and references consequential to the changes made by the following Defence Force Remuneration Tribunal Determinations.

  • DFRT Determination No. 1 of 2017, Defence Force Remuneration Tribunal Determinations – amendments, commencing 3 April 2017.
  • DFRT Determination No. 2 of 2017, Salaries, commencing 4 April 2017.

Some provisions which relate to the payment and non-payment of salary and allowances made under section 58H of the Defence Act have been removed from the Principal Determination. These rules are more appropriately made under section 58H of the Defence Act and not under section 58B of the Defence Act. The removal of these provisions will not affect the rights of the member as these rules are now provided in the DFRT Salaries Principal Determination made under section 58H of the Defence Act.

Conclusion

This Determination is compatible with human rights because it does not engage any applicable human rights or freedoms.

Phillip John Hoglin, Acting Assistant Secretary People Policy and Employment Conditions

 

 

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