EXPLANATORY STATEMENT

Defence Determination 2017/18

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.

This Determination amends the following Chapters of the Principal Determination.

• Chapter 12 of the Principal Determination provides an overview of overseas conditions of service for members of the Australian Defence Force (ADF).  
• Chapter 14 of the Principal Determination sets out provisions dealing with relocating to or from a long-term posting overseas for members of the ADF.
• Chapter 15 of the Principal Determination sets out provisions dealing with living and working on a long-term posting overseas for members of the ADF.
• Chapter 16 of the Principal Determination sets out provisions dealing with hardship locations overseas for members of the ADF.

This purpose of this Determination is to give effect to the measure handed down on 09 May 2017 as part of the 2017-18 Budget as it applies to the ADF. Budget Measure - Budget Paper No.2, 2017-18, Part 2: Expense Measures was a Cross Portfolio item titled ‘Overseas Allowances for Australian Government Employees – efficiencies’.

The aforementioned Budget measure was the outcome of a Whole-of-Government review of overseas entitlements, allowances, financial support and conditions of service provided to Australian Government employees stationed overseas (the Review). The Review was commissioned to find ways to improve the efficiency and effectiveness of overseas conditions and to provide recommendations for standardisation across agencies. The review covered both ADF members and Australian Public Service (APS) employees posted or employed overseas. ADF members and APS employees on operational deployment overseas were outside the scope of the Review.

The Review compared and contrasted the extant conditions of service applicable across government agencies and departments. The appropriateness of these conditions was evaluated against the need to facilitate the pursuit of Australia’s interests internationally, the community expectations for the use of public funds and the impact an overseas posting could have on a family. In finalising the suite of recommendations, steps were taken to ensure members or employees did not suffer financial disadvantage as a result of taking an overseas posting.

This Determination provides for members on or approved for an overseas posting prior to 1 July 2017 to remain on the extant conditions of service package. This decision was made to preserve the conditions on which these members made the commitment to undertake an overseas posting so as to not potentially disadvantage them as a result of these changes. Members who are approved for an overseas posting on or after 1 July 2017 will commence on the new conditions of service provided for in the Budget measure. All members not already under the new conditions of service will transfer onto the new conditions of service as provided for in the Budget measure with effect 1 July 2020.

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

Section 2 of this Determination provides that the whole of this Determination commences on 1 July 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 amends Chapter 12 of the Principal Determination which provides an overview of overseas conditions of service for members of the ADF.

Section 1 inserts the following two sections into the Principal Determination.

Section 12.3.9A provides the definition for "Member posted before 1 July 2017", which is used throughout the overseas conditions of service, consequential upon this Determination. Members who fit this definition are eligible for many of the overseas conditions of service available to all members prior this Determination. This ensures that members who are already posted on a long-term posting overseas or had the expectation of being posted overseas before 1 July 2017, are provided with the conditions of service existing at the time of posting or expectation of posting.

A discretionary clause has been inserted whereby Assistant Secretary People Policy and Employment Conditions may decide a member is to be considered posted before 1 July 17. This provides the flexibility necessary to give effect to the intent of 12.3.9A.1 whereby someone may technically fall outside the scope of that provision. This is necessary given the wide variety and nature of posting mechanisms used throughout the Department.

Section 12.3.9B provides the definition of "Member posted on or after 1 July 2017", which is used throughout the overseas conditions of service, consequential upon this Determination. Members who fit this definition are eligible for many new overseas conditions of service, which align with the outcomes of the Review. These are members who are posted on or after 1 July 2017 and had no expectation of an overseas posting before this date.

Schedule 2 amends Chapter 14 of the Principal Determination and sets out provisions dealing with relocating to or from long-term posting overseas for members of the ADF.

Sections 1 and 2 amend section 14.2.10 of the Principal Determination, which provides financial reimbursement for members on long-term posting overseas before leaving Australia. The changes align overseas conditions of service to the Review outcomes. The amendments include the following:

Section 1 inserts " – member posted before 1 July 2017" to the section heading. The benefit is no longer provided to members posted on or after 1 July 2017.

Section 2 inserts subsection 14.2.10.1A which provides that the section only applies to a member posted before 1 July 2017. The benefit is no longer provided to members posted on or after 1 July 2017.

Section 3 omits and substitutes paragraph 14.2.11.3.d of the Principal Determination, which provides for reimbursement for loss on sale of a motor vehicle if a long term posting has been cancelled. The benefit is no longer provided to members posted on or after 1 July 2017. This aligns with the outcomes of the Review.

Sections 4 and 5 amend section 14.3.14 of the Principal Determination, which provides for loss on sale of a motor vehicle before a long term posting overseas. The changes align with the outcomes of the Review. The amendments include the following.

Section 4 inserts " – member posted before 1 July 2017" to the section heading. The benefit is no longer provided to members posted on or after 1 July 2017.

Section 5 amends subsection 14.3.14.1 to provide only a member posted before 1 July 2017 may be reimbursed an amount of a loss incurred on the sale of a private vehicle.

Section 6 omits and substitutes subsection 14.6.8.3 of the Principal Determination, which provides for conditions of service in the event the member is directed by the Commonwealth to withdraw from their posting location. The subsection previously provided that the Commonwealth would continue to pay telephone rental and the employment of domestic or gardening assistance. These have been removed to align with the outcomes of the Review which provided for these costs when a member was in location under the Household Help provision in section 15.4.26. The provision for CDF to provide for ongoing telephone and gardening expenses during an evacuation from post is no longer in line with community expectations and will no longer be provided. Reimbursement of the expenses during a member's time in location is not provided therefore payment during evacuation should not be expected.

Schedule 3 Part 1 section 1 inserts Chapter 15 Part 2A into the Principal Determination, which provides overseas living allowances for members who are posted on or after 1 July 2017 on a long-term posting overseas. Many new overseas conditions of service are provided in this Part to align with the outcomes of the Review.

Section 15.2A.1 provides an overview of the Part.

Section 15.2A.2 provides a table of contents of the Part.

Part 2A Division 1 provides the purpose, application and key concepts for the Part. Part 2A Division 1 largely reflects the same provisions applicable under Part 2

Section 15.2A.3 provides the purpose of Division 1. It also advises the allowances are notional and based on general spending habits and may not reflect an individual’s situation.

Section 15.2A.4 provides that this Part only applies to members posted on or after 1 July 2017.

Section 15.2A.5 provides that the Part does not apply to a member who is away from their posting location.

Section 15.2A.6 provides when changes to overseas living allowances may occur and why.

Section 15.2A.7 provides what a post index is, how and when it is determined and how it affects overseas living allowances.

Section 15.2A.8 provides that overseas living allowances may be reduced if a member receives other non-Commonwealth payments the member receives. This is in line with the purpose that the allowances are not intended to increase a member’s income.

Section 15.2A.9 provides a dual Commonwealth benefit rule which applies to a member whose spouse or partner are also eligible for the same or similar overseas benefit because they are also a member or a Commonwealth employee posted to the same posting location overseas. The rule provides that a member is not entitled to a benefit unless they advise Defence that their spouse or partner is not receiving that benefit. The basis of the overseas conditions of service package is to partially compensate for the lost income of a spouse, and to compensate for other factors as if no additional allowances were provided. As the over-arching employer the Commonwealth should not pay benefits intended to compensate a member and their partner twice where both members of the couple are members or a member and employee, are posted to the same location.

Part 2A Division 2 provides the conditions for the cost of living adjustment.

Section 15.2A.10 provides the purpose of the revised 'Cost of Living Adjustment' (COLA), which applies to members posted on or after 1 July 2017. The purpose of the allowance is to maintain the purchasing power of a member's disposable income at locations where the cost of goods and services is more expensive than in Australia. COLA is not applied in locations where the cost of living is below that of Australia.

Section 15.2A.11 provides the period of eligibility for COLA, which is the duration of the member's posting period.

Section 15.2A.12 provides how COLA is calculated. The Review directed a common methodology be used across all agencies sourced from an independent data provider. For members posted on or after 1 July 2017, Defence would have calculated COLA from a member's ‘disposable salary’ which was salary plus allowances minus tax multiplied by the post index at Annex 15.2.A. The review directed a spendable salary methodology be used and to not include allowances. An independent data provider's methodology is used to ascertain spendable salary. This calculation is applied prior to applying the post index to reflect the cost of living difference between Australia and the host country.

The independent data provider’s methodology is their intellectual property and cannot be disclosed publicly as it does not belong to the Commonwealth and would be in breach of the terms and conditions under which it is obtained. This Determination implements the government’s decision to standardise allowances across departments and agencies and the COLA calculation is a core part of this outcome. The impact of the spendable salary factor is applied consistently across the ADF and APS employees, both within Defence and other government agencies. COLA is an additional allowance provided to the member and the use of the applied post index ensures the allowance does not go below zero and there is no loss of income to the member.

Part 2A Division 3 provides the conditions for the cost of posting allowance.

Section 15.2A.13 provides the purpose of the revised 'Cost of Posting Allowance' (COPA) which applies to members posted on or after 1 July 2017. COPA compensates employees for the wider financial and non-financial range of impacts a posting has on their life. Among the financial and non-financial issues compensated for by COPA are the general impact of uprooting home and working abroad; miscellaneous expenditure associated with international living; conforming to local customs; loss of spouse or partner income, superannuation, and career impact and dislocation from family and friends in Australia.

Section 15.2A.14 provides the period of eligibility for COPA, which is the duration of the member's posting period.

Section 15.2A.15 provides how the rate of COPA is worked out. The amount is18% of the member's salary for an unaccompanied member or 28% for a member who is accompanied by their dependants. Thresholds provide that the minimum amount of allowance is 18% (unaccompanied) or 28% (accompanied) of a Major on pay grade 1 and increment O4-0 (if the member's actual salary is lower), and maximum amount is 18% (unaccompanied) or 28% (accompanied) of a Colonel on pay grade 10 and increment O6-1 (if the member's actual salary is higher). These rates are in accordance with the Review outcomes.

Section 15.2A.16 provides a supplementary COPA amount for members posted in Manhattan, USA. These members often have to provide an annual tip to people providing apartment and garaging services. The section contains CDF discretion to pay a member AUD 1,200 if the CDF decides the member has an obligation to pay for these services.

Part 2A Division 4 provides the conditions child supplement allowance.

Section 15.2A.17 provides the purpose of child supplement allowance, which is to help with the extra costs of maintaining a child who is a dependant at the overseas posting location. These costs are new or additional to the expenses the member would have incurred if the family had remained in Australia. The allowance is necessary because these costs are not included in COLA, COPA or Locations Allowances.

Section 15.2A.18 provides who the Division applies to.

Section 15.2A.19 provides the period of eligibility for the child supplement allowance.

Section 15.2A.20 provides the amount of allowance a member is eligible for. The base rates of child supplement allowance are representative of the differing costs associated with raising children at different ages. The base rates are a percentage of the average annual salary of all Defence personnel posted overseas. The average annual salary is to be adjusted each year in line with salary movements. These rates are increased by post indexes in countries where the cost of living is determined to be higher than in Australia (post index greater than 100).

The Child Reunion Supplement provided to members posted before 1 July 2017 is no longer provided to members posted on or after 1 July 2017. The Child Reunion Supplement was removed as it no longer reflects community expectations and its makeup could not be clearly quantified. Other provisions relating to children remaining in Australia are retained such as Reunion Travel provisions and Commonwealth funding boarding school in Australia.

Additional food and clothing allowance provisions will be included in Chapter 15 Part 2A later. This will be done in a determination consequential to this one.

Section Annex 15.2A.A provides the post indexes for all ADF posting locations. A post index reflects the cost of living differences between Australia and the host country. Only indexes above 100 are used in allowance calculations. Where an actual index is below 100 the applied index used is 100 so as not to detriment the member. The Annex is identical to Annex 15.2.A (Annex that applies to members posted before 1 July 2017).

Schedule 3 Part 2 amends miscellaneous provisions in Chapter 15 of the Principal Determination, which provides conditions for living and working on long-term posting overseas.

Section 1 amends section 15.0.2 of the Principal Determination, which provides a list of contents for Chapter 15. The entry for Part 7 'Foreign language training for spouse or partner' is substituted to include " – Member posted before 1 July 2017". The benefit is no longer provided to members posted on or after 1 July 2017. This aligns overseas conditions of service for the Review package.

Sections 2, 4, 6, 8, 9, 12, and 15 to 17 and 19 omit and substitute the headings of Chapter 15 Part 2, Divisions 1 to 7 and Annex 15.2.A and Part 4 Division 6 of the Principal Determination. In each instance the words " – Member posted before 1 July 2017" are inserted to the end of the titles. The provisions under the new headings provide the overseas conditions of service available to all members prior this Determination. The new headings make clear that the provisions now only apply to members who are already posted on a long-term posting overseas or had the expectation of being posted overseas before 1 July 2017. Conditions for member posted on or after 1 July 2017 are provided in a new Part 2A, consequential upon Schedule 3 Part 2 of this Determination.

Section 3 omits and substitutes the contents table in section 15.2.2 of the Principal Determination. The amendments insert " – Member posted before 1 July2017" at the end of each Division and Annex title.

Section 5 omits and substitutes section 15.2.4 of the Principal Determination, which sets out whom Chapter 15 Part 2 applies. This has been amended to reflect that the Part only applies to members posted before 1 July 2017 as result of the Review conditions of service package.

Section 7 omits and substitutes section 15.2.11 of the Principal Determination, which describes the purpose of cost of living adjustment for ADF members posted overseas. This section has been amended to better articulate the purpose.

Section 10 inserts section 15.2.18A into the Principal Determination, which sets out whom the Chapter 16 Part 4 applies. This has been amended to reflect that the Part only applies to members posted before 1 July 2017 as result of the Whole-of-Government conditions of service package.

Section 11 omits and substitutes section 15.2.19 of the Principal Determination, which provides that the Division (child supplement allowance) does not apply to the member in respect of a child for whom the member is receiving child reunion allowance. A member is not eligible for both allowances for the same child.

Section 13 omits and substitutes section 15.2.24 of the Principal Determination, which provides which members the Division (child reunion allowance) applies to. The amendment provides that the Division only applies to a member posted before 1 July 2017.

Section 14 omits and substitutes section 15.2.25 of the Principal Determination, which provides that the Division (child reunion allowance) does not apply to the member in respect of a child for whom the member is receiving child supplement allowance. A member is not eligible for both allowances for the same child.

Section 18 amends section 15.4.4 of the Principal Determination, which provides a table of contents for Division 6 Household help. " – Member posted before 1 July 2017" is inserted after the Division as the benefit is no longer provided to members posted on or after 1 July 2017 as a result of the Review.

Section 20 inserts section 15.4.26A into the Principal Determination, which sets out whom the Division (household help) applies. The amendment provides that the Division only applies to a member posted before 1 July 2017.

Section 21 omits and substitutes subsection 15.6.20.3 of the Principal Determination, which provides that if a dependent child is educated away from the member's posting location, the member may be eligible for reunion visits for the child and child reunion allowance instead of child allowance. An exception is inserted which provides that a member posted on or after 1 July 2017 is not eligible for child reunion allowance.

Section 22 amends the heading of Chapter 15 Part 7 of the Principal Determination "Foreign language training for spouse or partner". The heading is amended to include that the benefit is not provided to a member posted on or after 1 July 2017. This benefit is incorporated into the cost of posting allowance as a Result of the Review.

Section 23 inserts section 15.7.1A into the Principal Determination, which sets out whom the Division (foreign language training for spouse or partner) applies. The amendment provides that the Division only applies to a member posted before 1 July 2017. Members posted on or after 1 July 2017 do not receive this benefit as it is incorporated into their cost of posting allowance as a result of the Review.

Schedule 4 amends Chapter 16 of the Principal Determination, which sets out provisions dealing with overseas hardship locations for members of the ADF.

Section 1 omits and substitutes the contents table in section 16.0.2 of the Principal Determination. The amendments insert either " – Member posted before 1 July 2017" or " – Member posted on or after 1 July 2017" at the end of the relevant Part and Annex title.

Section 2 omits and substitutes Chapter 16 Part 1 of the Principal Determination, which provides general conditions and definitions for overseas hardship locations. This has been amended to reflect which sections within the Part apply to members posted before or after 1 July 2017 as result of the Review.

 Section 16.1.1 provides the purpose of the overseas hardship package.

Section 16.1.2 provides definitions of terms used in the Chapter.

Section 16.1.3 provides the Chapter applies to members performing duty in a hardship location.

Section 16.1.4 provides that the hardship package does not apply to members on warlike and non-warlike deployments.

Section 16.1.5 provides a dual Commonwealth benefit rule which applies to a member whose spouse or partner are also eligible for the same or similar overseas benefit because they are also a member or a Commonwealth employee posted to the same posting location overseas. The rule provides that a member is not entitled to a benefit unless they advise Defence that their spouse or partner is not receiving that benefit. The basis of the overseas conditions of service package is to partially compensate for the lost income of a spouse, and to compensate for other factors as if no additional allowances were provided. As the over-arching employer the Commonwealth should not pay benefits intended to compensate a member and their partner twice where both members of the couple are members or a member and employee, are posted to the same location.

Section 16.1.6 provides cross references to the various benefits of the hardship package.

Section 16.1.7 provides the basis for including and grading hardship locations. Factors include harshness of climate, remoteness, security level etc.

Section 16.1.8 provides the CDF may approve a location not listed as a hardship location, be made a hardship location for the purposes of benefits under the Chapter. In exercising this delegation the CDF must approve a grade for the location and determine for how long this is to apply, up to a limit of three months.

Section 16.1.9 provides the criteria to be considered when CDF is considering a provisional hardship location under 16.1.8. These criteria have been made a separate section so they can be easily referenced where the CDF makes a similar assessment elsewhere in Chapter 16.

Section 3 omits and substitutes Chapter 16 Part 2 of the Principal Determination, which provides for overseas hardship allowance. This has been amended to reflect which sections within the Part apply to members posted before 1 July 2017 as result of the Review.

Section 16.2.1 provides the purpose of hardship allowance.

Section 16.2.2 provides that the Part applies to a member posted before 1 July 2017.

Section 16.2.3 provides who the Part does not apply to.

Section 16.2.4 provides the criteria for when a member may be paid hardship allowance.

Section 16.2.5 provides the amount of hardship allowance a member may be paid. The amount is dependent on the locations hardship grade and the member's accompanied status.

Section 16.2.6 provides the rules for the cessation of hardship allowance when a member is temporarily absent from the hardship location. It takes into account the members purpose for being in the hardship location and the location of a member dependants (if applicable) during the absence.

Section 16.2.7 provides that if a member is eligible for hardship allowance in more than one location, they will only receive hardship allowance for the location that has the highest rate, not for both.

Section 3 inserts Chapter 16 Part 2A into the Principal Determination, which provides location allowance which was formerly known as overseas hardship allowance. The following changes have been made.

Section 16.2A.1 provides the purpose of location allowance.

Section 16.2A.2 provides that the Part applies to a member posted on or after 1 July 2017, to a member performing short-term duty in a hardship location or a member performing duty in a provisional hardship location.

Section 16.2A.3 provides who the Part does not apply to.

Section 16.2A.5 provides what constitutes the period of duty which is used elsewhere in the Part to determine if a member is eligible for benefits.

Section 16.2A.5 provides the amount of location allowance a member may be paid. The amount is dependent on the locations hardship grade and the member's accompanied status. The rates applied are a percentage of Defence's average annual overseas salary adjusted by an independent data provider's methodology. The average annual salary is adjusted each year in line with salary movements

Section 16.2A.6 provides that if a member is eligible for location allowance in more than one location, they will only receive location allowance for the location that has the highest rate and not for both.

Section 16.2A.7 provides instruction on the rate of location allowance to be paid when a member is absent from the hardship location on short term duty in another hardship location.

Section 4 omits and substitutes Chapter 16 Part 3 of the Principal Determination, which provides additional recreation leave for members at hardship locations. This has been amended to reflect that the Part applies only to members posted before 1 July 2017 as result of the Review.

Section 16.3.1 provides the purpose of additional recreation leave.

Section 16.3.2 provides that the Part applies to a member posted before 1 July 2017.

Section 16.3.3 provides a member performing duty at a hardship post is eligible for additional recreation leave.

Section 4 also inserts Chapter 16 Part 3A of the Principal Determination, which provides additional recreation leave for members at hardship locations. This has been amended to reflect that the Part applies only to members posted on or after 1 July 2017 as result of the Review.

Section 16.3A.1 provides the purpose of additional recreation leave.

Section 16.3A.2 provides that the Part applies to a member posted on or after 1 July 2017.

Section 16.3A.3 provides a member performing duty at a hardship post is entitled to additional recreation leave. The hardship grades and additional recreation leave accrual has been standardised as part of the Review and is based on an independent data provider's methodology.

Section 5 omits section 16.4.2 of the Principal Determination which provides definitions for assisted leave travel for members at overseas hardship locations. These definitions have been moved to section 16.1.2 of the Principal Determination by Schedule 4 section 1 of this Determination and removes duplication.

Section 6 omits and substitutes paragraph 16.4.3.a of the Principal Determination, which provided that the Part applied to a member posted to a hardship location in an Annex amended by Schedule 4 section 16 of this Determination. Section 6 amends the cross references to reflect the changes to the Annex.

Section 7 omits and substitutes subsection 16.4.7.1 of the Principal Determination, which provides the number of trips a member is eligible to have to a leave centre for their hardship location. There are now two annexes that set out the number of trips: one for members posted before (Annex 16.A) and one for members posted on or after (Annex 16.B) 1 July 2017. Section 7 amends the references to the Annexes to reflect these changes.

Section 8 omits and substitutes subsection 16.4.8.2 of the Principal Determination, which provides the formula to calculate the number of trips a member is eligible for to a leave centre from their hardship location, if their posting period is longer than normal. The formula has been reformatted for ease of reading. Section 8 amends the references to the Annexes to reflect the changes made by Schedule 4 section 16 of this Determination.

Section 9 inserts section 16.4.16 into the Principal Determination, which provides conditions for excess baggage for a member using an assisted leave travel benefit. This has been omitted from Chapter 16 Part 4 by Schedule 4 section 12 of this Determination.

Section 10 omits section 16.5.2 of the Principal Determination which provides definitions for accommodation on unavoidable stopovers. These definitions have been moved to section 16.1.2 of the Principal Determination by Schedule 4 section 2 of this Determination.

Section 11 omits and substitutes paragraph 16.5.3.a of the Principal Determination, which provides the conditions a member must meet for the Part to apply. Section 11 amends references to Annex 16.B consequential upon changes mage by Schedule 4 section 16 of this Determination.

Section 12 omits Chapter 16 Part 6 of the Principal Determination, which provides excess baggage for members travelling on assisted leave travel from a hardship location. This has now been moved to Chapter 16 Part 4 and removes duplication.

Section 13 amends the heading of Chapter 16 Part 8 of the Principal Determination. The heading is changed from "Location allowances" to "Special location allowances". This naming convention aligns with Review recommendations.

Section 14 amends the heading of section 16.8.4 and of the Principal Determination, which provides for unused leave balances for Defence Attachés. The change provides that the section only applies to members posted before 1 July 2017.

Section 15 inserts subsection 16.8.4.1 to the Principal Determination, which provides for unused leave balance for Defence Attachés. The change provides that the section only applies to members posted before 1 July 2017.

Section 16 omits and substitutes Annex 16.A of the Principal Determination, which provides hardship post conditions of service. There are now two Annexes; one for members posted before (Annex 16.A) and one for members posted on or after (Annex 16.B) 1 July 2017.

Annex 16.A Part 1 includes the following amendments:

-                 The ordinary posting period for Canada Cold Lake, Alberta, Moose Jaw Saskatchewan and Oromocto (Items 3 to 5) has been amended to 24 months. The previous footnote 5 which stated “for the purpose of calculating assisted leave travel the ordinary posting period was to be considered 24 months” has been removed.

-                 The ordinary posting period for Kuwait (Item 21) has been reduced from 24 months to 12 months to reflect the actual duration of ADF postings to Kuwait. The relief leave centre trip has been removed to maintain the provision of one trip per annum.

-                 Malaysia – Johor Bahru (Item 24A) has been added as a separate location to reflect the updated grading from our independent data provider. Johor Bahru is assessed as a Grade D location.

-                 Pakistan – Quetta (Item 28A) has been added as a separate location to reflect the reduced posting period and provide certainty around assisted leave travel provision from the location.

-                 Timor Leste – Dili (Item 41) and Timor-Leste – Other locations (Item 42) have been combined into a single Timor Leste (Item 41). The benefits for these locations were identical and remain unchanged.

Annex 16.A Part 2 includes the following amendments:

-                 Qatar (Item 8) has been added as a separate location and assigned a Grade C as indicated by our independent data provider.

-                 Belgrade (formerly Item 2) has been renamed to Serbia to reflect the country rather than the city which is consistent practice with the remainder of the table.

Annex 16.B includes the following amendments:

-                 The amendments outlined above to Annex 16.A are carried over into Annex 16.B

-                 Annex 16.A Part 2 has been incorporated into the table in Annex 16.B. Annex 16.B does not have a Part 2.

-                 The leave days attributable to the following locations have increased as a result of the standardisation of location ratings and the associated additional recreation leave provisions (see 16.3A.4); Egypt, Fiji, Kenya, Malaysia (Kuala Lumpur), Sri Lanka, Thailand and Vanuatu.

-                 The leave days attributable to the following locations have decreased as a result of the standardisation of location ratings and the associated additional recreation leave provisions (see 16.3A.4); Canada (all locations), China, Cook Islands, Japan, Jordan, Korea (all locations), Kuwait, Lebanon, Micronesia, Palau, Philippines, Samoa, Singapore, Tonga, USA – Guam, Vietnam

Schedule 5 amends Chapter 3 of the Principal Determination which sets out provisions dealing with salary structures, pay scales, increments and related Conditions of service for the ADF.

Section 1 omits and substitutes table item 5 of subsection 3.2.7.3 of the Principal Determination, which provides for the administration of salary and allowances. This substitution provides reference to child supplement allowance for a member posted on or after 1 July 2017 (table item 5A) and child allowance before 1 July 2017 (table item 5).

Section 2 omits and substitutes table item 6 of subsection 3.2.7.3 of the Principal Determination, which provides for the administration of salary and allowances. This substitution provides for child reunion allowance for a member posted before 1 July 2017.

Section 3 omits and substitutes table item 7 of subsection 3.2.7.3 of the Principal Determination, which provides for the administration of salary and allowances. This substitution provides reference to cost of living adjustment for a member posted on or after 1 July 2017 (table item 7A) and child allowance before 1 July 2017 (table item 7).

Section 4 omits and substitutes table item 8 of subsection 3.2.7.3 of the Principal Determination, which provides for the administration of salary and allowances. This substitution provides reference to location allowance for a member posted on or after 1 July 2017 (table item 8A) and hardship allowance for a member posted before 1 July 2017 (table item 8).

Section 5 omits and substitutes table item 11 of subsection 3.2.7.3 of the Principal Determination, which provides for the administration of salary and allowances. This substitution provides reference to cost of post adjustment for a member posted on or after 1 July 2017 (table item 11A) and post adjustment for a member posted before 1 July 2017 (table item 11).

Section 6 inserts a note to subsection 3.2.7.3 of the Principal Determination. This references Chapter 12 Part 3 which provides the definition of ‘member posted before 1 July 2017’, or ‘member posted on or after 1 July 2017’.

Section 7 omits and substitutes table item 8 of subsection 3.7.2.2 of the Principal Determination, which provides for the salary and allowances when a member is absent without leave, in civil custody or undergoing a period of detention or imprisonment. This substitution provides reference to overseas living allowances for a member posted on or after 1 July 2017 (table item 9) and for a member posted before 1 July 2017 (table item 8).

Section 8 inserts a note to subsection 3.7.3.2 of the Principal Determination. This references Chapter 12 Part 3 which provides the definition of ‘member posted before 1 July 2017’, or ‘member posted on or after 1 July 2017’.

Consultation

Navy, Army and Air Force, Defence International Policy Division and the relevant overseas posts within Defence were consulted in the preparation of this Determination. The rule maker was satisfied that further internal or external consultation was not required.

Defence has also consulted with the Department of Foreign Affairs and Trade about the implementation of the review.

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 2017/18, Overseas conditions of service (Budget measure 2017-18 – Overseas allowances) 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 2016/19, Conditions of Service.

The purpose of this Determination is to give effect to the Budget measure handed down on 9 May 2017 as part of the 2017-18 Budget as it applies to the Australian Defence Force. Budget Measure - Budget Paper No.2, 2017-18, Part 2: Expense Measures was a Cross Portfolio item titled ‘Overseas Allowances for Australian Government Employees – efficiencies’.

The aforementioned Budget measure was the outcome of a Whole-of-Government review of overseas entitlements, allowances, financial support and conditions of service provided to Australian Government employees stationed overseas (the Review). The Review was commissioned to find ways to improve the efficiency and effectiveness of overseas conditions and to enable a standard method of calculation across agencies. The review covered both ADF members and Australian Public Service (APS) employees posted or employed overseas. ADF members and APS employees on operational deployment overseas were outside the scope of the Review.

Human rights implications

Right to the enjoyment of just and favourable conditions of work

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

A member undertaking a posting overseas receives benefits provided by Defence Determination 2016/19. This Determination amends some of those benefits and affects members posted overseas on or after 1 July 2017 and will have a minimal impact on those already on an overseas posting or who have received notice of a posting before 1 July 2017.

Legitimate objective: Defence often requires its members to relocate to new locations around the world. It recognises the importance of providing additional allowances to maintain the member’s standard of living, provide for the additional costs associated with an overseas posting on both the member and any dependent children who accompany them.

Reasonable, necessary and proportionate: This Determination amends key allowances provided to maintain the standard of living, provide for the additional costs of and to compensate for the hardships associated with an overseas posting. These benefits have been reviewed and aligned across agencies and departments. These benefits are applied as a package. In assessing the impact of the package community expectations for use of public funds and the impact an overseas posting could have on a family were taken into account. In establishing contemporary conditions steps were taken to ensure members did not suffer financial disadvantage as a result of taking an overseas posting.

This Determination does not limit the right to an adequate standard of living. It provides benefits to members who are required to perform their duties at an overseas posting location, in addition to their Australian-based conditions of service.

Right to an adequate standard of living.

The protection of a person's right to an adequate standard of living engages Article 11 of the International Covenant on Economic, Social and Cultural Rights. Article 11 recognises the right of everyone to an adequate standard of living for them and their family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

Legitimate objective: Defence often requires its members to relocate to new locations around the world. It recognises the importance of providing additional allowances to maintain the member’s standard of living, provide for the additional costs associated with an overseas posting on both the member and any dependant children who accompany them.

Reasonable, necessary and proportionate: This Determination amends key allowances provided to maintain the standard of living and provide for the additional costs associated with an overseas posting. These benefits, specifically the Cost of Living Adjustment, Cost of Posting Allowance and Child Supplement Allowance have been reviewed and aligned across agencies and departments. These benefits are applied as a package. In assessing the impact of the package community expectations for use of public funds and the impact an overseas posting could have on a family were taken into account. In establishing contemporary conditions steps were taken to ensure members did not suffer financial disadvantage as a result of taking an overseas posting. The underlying principle of the overseas conditions of service package is that members should be provided assistance on the basis that they neither gain nor lose financially.

This Determination does not limit the right to an adequate standard of living. It provides benefits to members who are required to perform their duties at an overseas posting location, in addition to their Australian-based conditions of service.

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