EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Accrual of service for long service leave – Recognition of prior service) Determination 2018 (No. 8)
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 5 of the Principal Determination sets out provisions dealing with leave for members of the Australian Defence Force (ADF).
The purpose of this Determination is to amend the provision relating to the gap between two periods of service and how a member converts prior service to accrued service for the purposes of long service leave. If the gap between the two periods of service is less than twelve months the earlier period is to be counted when determining a member's accrued service.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 8 February 2018.
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 sets out amendments to the Principal Determination.
Section 1 amends subsection 5.5.15.2 of the Principal Determination, which provides that if a member has two periods of service with a gap of over twelve months between them, the earlier period cannot be counted as accrued service for the purposes of long service leave. The provision has been amended to provide clarity and remove ambiguity around the gap between the two periods of service.
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, Conditions of Service Amendment (Accrual of service for long service leave – Recognition of prior service) Determination 2018 (No. 8)
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 makes technical amendments to Defence Determination 2016/19, Conditions of service.
The purpose of this Determination is to amend the provision relating to the gap between two periods of service and to clarify how a member converts prior service to accrued service for the purposes of long service leave.
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.
This Determination provides for a member who undertakes multiple periods of service with gaps of less than 12 months between them and enables the member to count these periods of service towards their overall accrued service for the purposes of long service leave. This ensures the member receives just and favourable remuneration in accordance with Article 7.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions
Overview
The Defence Determination, Conditions of Service Amendment (Accrual of Service for Long Service Leave – Recognition of Prior Service) Determination 2018 (No. 8) amends Defence Determination 2016/19, Conditions of Service, which was made under section 58B of the Defence Act 1903. The amendment addresses a gap in the previous legislation by clarifying the conditions under which members of the Australian Defence Force can convert prior service into accrued service for long service leave purposes. Specifically, if the gap between two periods of service is less than twelve months, the earlier period can now be counted towards the member's accrued service. This Determination was enacted to ensure clarity and remove ambiguity in the service accrual process, thereby providing members with fair and favourable conditions of service in accordance with human rights standards.
The Determination was developed in consultation with the Navy, Army, and Air Force, and it has been declared compatible with the human rights and freedoms recognised in international instruments. It ensures that members who have multiple periods of service with short gaps between them can have these periods recognised towards their long service leave entitlements, thus upholding the right to just and favourable conditions of work as outlined in Article 7 of the International Covenant on Economic, Social and Cultural Rights. The Determination was issued under the authority of section 58B of the Defence Act 1903 and commenced on 8 February 2018.
Scope and Application
The Defence Determination, Conditions of Service Amendment (Accrual of service for long service leave – Recognition of prior service) Determination 2018 (No. 8) amends Defence Determination 2016/19, Conditions of service, made under section 58B of the Defence Act 1903. This Determination applies to members of the Australian Defence Force (ADF) by clarifying how a member can convert prior service to accrued service for long service leave, particularly when the gap between two periods of service is less than twelve months. It ensures that such members can count their earlier period of service towards their overall accrued service, thereby enhancing their eligibility for long service leave. The amendment operates nationally and is subject to the interpretation principles in the Acts Interpretation Act 1901, as modified by section 58B of the Defence Act. There are no exclusions, exemptions, or thresholds specified in this Determination, and its application is not extended or restricted through subordinate instruments. The Determination is compatible with human rights, ensuring that ADF members receive just and favourable conditions of work as per Article 7 of the International Covenant on Economic, Social and Cultural Rights.
Key Provisions
The key provision of the Defence Determination, Conditions of Service Amendment (Accrual of service for long service leave – Recognition of prior service) Determination 2018 (No. 8) (the Determination) is found in Schedule 1, which amends subsection 5.5.15.2 of Defence Determination 2016/19, Conditions of service (the Principal Determination). Specifically, the Determination modifies the gap period between two periods of service for Defence Force members, clarifying that if the gap between two periods of service is less than twelve months, the earlier period can be counted when determining a member's accrued service for long service leave (subsection 5.5.15.2). This amendment removes ambiguity and provides clarity around the gap between the two periods of service.
The Determination imposes obligations on Defence Force members and the Defence Force administration. Defence Force members are required to ensure that any gaps between periods of service are less than twelve months to count the earlier period towards accrued service for long service leave. The Defence Force administration must implement the changes outlined in the Determination and ensure that Defence Force members are aware of the new provisions and how they affect their accrued service for long service leave.
There are no specific offences, penalties, or civil/criminal consequences mentioned in the Determination for breach of its provisions. However, any failure to comply with the requirements of the Determination may result in Defence Force members not receiving the long service leave to which they are entitled. This may have financial implications for the Defence Force members, as long service leave is a form of remuneration and benefits. The Defence Force administration must ensure that the provisions of the Determination are properly implemented and enforced to prevent any potential non-compliance and its associated consequences.