EXPLANATORY STATEMENT

Defence Determination 2017/26

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.

Chapter 3 of the Principal Determination sets out provisions dealing with salaries and bonuses for members of the Australian Defence Force (ADF). Chapter 7 of the Principal Determination sets out provisions dealing ADF housing and meals in Australia.

This Determination has the following purposes.

• To make threshold periods consistent across most conditions of service.
• To reduce the period for which a member may turn off their contribution for eating meals provided by the Commonwealth in Service messes and amend the method of calculating the pro rated amount.
• To amend the time limits that determine when a member's living-in accommodation, meals and utilities contributions cease during absences.
• To remove a redundant provision on excess Reserve service.

The amendments will support the introduction of a new ADF payroll system.

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

Section 2 is the commencement provision for the Determination and includes a table setting out the details of the commencement of sections of the Determination. Column 1 of the table sets out the provisions in numbered items, column 2 sets out the commencement and column 3 sets out date/details. Information in column 3 does not form part of the Act, so information can subsequently be inserted in the column (or edited) in a published version of the Determination. Item 1 provides that the whole of the instrument commences on 10 August 2017, which is the first pay day following the commencement of the new ADF payroll system.

Section 3 provides that the authority for the instrument is 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 sets out amendments to the Principal Determination by changing threshold periods to be a consistent 21 days across most ADF service conditions. This will reduce a number of unnecessary disparate timeframes across ADF conditions of service rules. Moving to a more uniform 21 day threshold makes interoperability of application of conditions of service much easier to administer. The following specific changes have been made.

• Section 1 amends subsection 7.4.A.21.1 of the Principal Determination, which provided that a member must notify their accommodation manager if their living-in accommodation is to be unoccupied for more than 28 days. This aligns with the changing threshold periods to be a consistent 21 days across most ADF service conditions.
• Section 2 amends paragraph 7.4.A.22.1.a of the Principal Determination, which provided that Defence should give a member 14 days notice of the date their licence to live in ends. Section 2 increases the notice period to 21 days. This provides members more time to make alternative accommodation arrangements.

• Section 3 amends subsection 7.4.A.22.2 table item 1 of the Principal Determination, which provided a member's obligation to give notice when they are leaving their living in accommodation and sets out when their contribution towards the accommodation will cease. Section 3 extends both notice and contribution periods to 21 days. This is to increase the time the member has to plan ahead so that they only pay for their accommodation for the period they occupy it. If they are required to move out for Service or other reasons they can still vacate the accommodation earlier and not pay for the accommodation from that date.
• Section 4 amends subsection 7.5.27.1 of the Principal Determination, which provided that a member may be advanced up to 14 days' temporary accommodation allowance at one time. The amount of advancement has been extended to 21 days worth of temporary accommodation allowance.

Schedule 2 sets out amendments to the Principal Determination.

• Section 1 amends subsection 3.2.8.1 of the Principal Determination, which sets out how fortnightly contributions are pro rated. Section 1 amends table item 2 provides that the daily rate of contribution a member who is living in must make towards meals is one fourteenth of the fortnight meal change. This amendment aligns with the pro rata calculations applied to other housing-related policies, such as the contribution for living in accommodation, service residence, rent allowance and utilities.
• Section 2 amends section 7.9.7 of the Principal Determination, which provides for a member to choose not to take regular meals provided by the Commonwealth in Service messes. The amendment removes the 3 month limit on reversing a decision not to take regular meals but provides that a member can not make the decision for period that are less than four days. The amendment also removes the provision that sets out when the decision ceased to apply. This will now be self administer by the member through self service functionality in the new ADF payroll system.
• Section 3 substitutes paragraph 7.9.9.1.d of the Principal Determination, which provides that a member living under field conditions or on a seagoing ship does not pay a contribution towards the cost of meals. The amendment makes clear that this rule applies to any full-day or part-day the member is living under those conditions. Section 3 also provides a note to make clear that a member does not pay a contribution for a meal in a mess when a meal ordinarily provided on a ship is unavailable.
• Section 4 substitutes subsection 7.10.9.2 of the Principal Determination, which provides that a member living under field conditions, on a seagoing ship or seagoing submarine, does not pay a contribution towards the cost of utilities. Section 4 amends the rule to make clear that it applies to any full-day or part-day the member is living under those conditions.

Schedule 3 omits section 3.2.12 of the Principal Determination, which provided arrangements for payment of salary for days the member chose to work beyond their annual training commitment. Although those days were not paid, a formula was provided for the calculation of salary when a payrise occurred in the middle of a block of both annual training commitment days and excess days. Members are no longer allowed to work days over their annual training commitment, so the formula is redundant.

Consultation

Navy, Army and Air Force were consulted in the preparation of this Determination. The rulemaker was satisfied that external consultation was not required.

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 2017/26, Living-in accommodation, meals, utilities and excess service – 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.

• To make threshold periods consistent across most conditions of service.
• To reduce the period for which a member may turn off their contribution for eating meals provided by the Commonwealth in Service messes and amend the method of calculating the pro rated amount.
• To amend the time limits that determine when a member's living-in accommodation, meals and utilities contributions cease during absences.
• To remove a redundant provision on excess Reserve service.

Human rights implications

Right to an adequate standard of living.

The person’s right to an adequate standard of living engages article 11 of the International Covenant on Economic, Social and Cultural Rights. Article 11 ensures the realisation of this right, recognising to this effect the essential importance of an adequate standard of living. This pertains to all aspects relating to housing, including the ability to purchase a meal.

Legitimate objective: ADF members are required to live in various posting locations throughout Australia which may require them to live in a variety of housing types, such as on a military base, in a Service Residence or in rental accommodation. This could limit the standard of accommodation available to members. It could also cause a member to be separated from their family.

Reasonable, necessary and proportionate: Defence provides assistance with the cost of accommodation for a member and their family. The subsidy the Commonwealth provides is approximately 50% of the cost of the accommodation. The members are required to make contributions towards their subsidised accommodation, meals and the cost of utilities. This Determination amends when a member's housing contribution for living-in accommodation (including meal contributions) ceases during certain absences and at what point they recommence on the their return.

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.

This Determination revises salary administration arrangements for Reserve service members to accord with current practice. Reserve service members are paid on an on occurrence basis. If a member performs duty that has not been approved a payment cannot be made for that duty.

This Determination also protects this right by simplifying 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.

Conclusion

This Determination is compatible with human rights because it does not limit any human rights.

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