EXPLANATORY STATEMENT

Defence Determination 2017/33

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).

The purpose of this Determination is to provide a payment to selected members of the Reserves as an incentive to perform certain duties over a specified period. This is a payment, to be offered to selected members, to induce those members to serve in the Reserves. The payment will help to address shortages of members with particular skills at the time the payment is offered. The payment does not displace any Reserve employer support payment that may also be payable to the member's employer and is in addition to the member's hourly rate of pay for their rank and employment category.

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.

Section 3 specifies that the amendment is made to the Principal Determination, as amended.

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 section 1 inserts Chapter 3 Part 5 Division 2A into the Principal Determination. The Division provides the conditions for a Reserve capability payment.

• Section 3.5.14A sets out the purpose of the Reserve capability payment.
• Section 3.5.14B provides the definition of Reserve capability payment.
• Section 3.5.14C provides eligibility for Reserve capability payment. Members of the Reserves not on continuous full-time service are eligible.
• Section 3.5.14D sets out the arrangements for making an offer of Reserve capability payment. The section provides the following conditions.
  • It sets limits to the amount of payment in the offer and the period of duty for Reserve capability payment.
  • It describes the factors that must be considered before an offer is made. The factors cover the ADF's need for particular skills and the member's suitability.
  • It provides that the fixed period in an offer must not overlap with another offer.
  • It provides a list of what the offer must include.
  • It provides that periods in which the member has to perform unrelated Reserve service or periods the member is imprisoned or in military detention, do not count towards the duty specified in the offer.
• Section 3.5.14E provides the timeframe a member has to accept an offer of Reserve capability payment. It also provides that by accepting an offer, the member agrees to the terms made in the offer.
• Section 3.5.14F provides that the Chief of Defence Force (CDF) may cease a member's period of duty for Reserve capability payment at any time. It also provides for a member who does not complete the service agreed to in the offer, in which case the CDF may end the arrangement. If the CDF ends the Reserve capability service arrangement for underperformance or for reasons the CDF is satisfied the member could have avoided, the member must repay all payments received and is not eligible for outstanding payments. If the CDF is satisfied the arrangement was ended for reasons the member could not have reasonably avoided, the CDF may decide the amount the member must repay and if the member is to be paid an outstanding amount.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions are subject to merits review under the ADF redress of grievance system, including an appeal to the Defence Force Ombudsman.

Consultation

The Navy, Army, and Air Force were consulted in the development of this Determination. The rulemaker was satisfied that further 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 2017/33, Reserve capability payment

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

The purpose of this Determination is to provide a payment to selected members of the Reserves as an incentive to perform certain duties over a specified period. This is a payment, to be offered to selected members, to induce those members to serve in the Reserves. The payment will help to address shortages of members with particular skills at the time the payment is offered. The payment does not displace any Reserve employer support payment that may also be payable to the member's employer and is in addition to the member's hourly rate of pay for their rank and employment category.

Human rights implications

This Determination engages the following human rights:

• Right to an adequate standard of living (article 11(1) International Covenant on Economic, Social

and Cultural Rights).

• Right to the enjoyment of just and favourable conditions of work (article 7 of the International

Covenant of Economic, Social and Cultural Rights).

Defence members are highly trained and valuable on the Australian employment

market. Reserve members typically have employment in the community as well as their Reserve service. 

Defence uses completion bonuses to make an ADF career

more attractive than other opportunities at critical points of workforce shortage or potential shortage. The

Reserve capability payment is a voluntary scheme. It provides an incentive to members to perform agreed amounts of Reserve service to address shortages of particular skills, for up to three years. During that time members may be able to continue their community employment. The payment does not displace any Reserve employer support payment that may also be payable to the member or their employer.

Conclusion

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

Jay Andrew Clarke, Acting Assistant Secretary People Policy and Employment Conditions