EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Administration of Salary for Officer Aviation Pay Structure) Determination 2018 (No. 19)

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.

Chapter 3 of the Principal Determination sets out provisions dealing with salary administration for members of the Australian Defence Force (ADF).

The purpose of this Determination is to provide for the increment placement, progression and transfer through the Officer Aviation Pay Structure contained in DFRT Determination No. 2 of 2017, Salaries, (‘the DFRT Determination’) as in force from time to time. References to the DFRT Determination include its ambulatory application, ‘as in force from time to time’ unless otherwise stated.

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

Section 2 of this Determination provides that the Determination commences on 3 May 2018.

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

Section 4 of this Determination provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 administration of salary in Defence Determination 2016/19

Sections 1 and 2 insert a new Division and a new Annex into the contents list for Part 2 at section 3.2.2 of the Principal Determination. The new Division and Annex are inserted by Schedules 2 and 3 of this Determination.

Section 3 inserts a new section 3.2.18A into the Principal Determination. The new section provides that Chapter 3 Part 2 Division 2 does not apply to a member who is being paid as an Air Force Officer Aviation member. Provision relating to Air Force Officer Aviation members can be found under Division 4A, Specialist Officer – Aviation, which sets out increment placement, progression and transfer through the Officer Aviation Pay Structure for Air Force Officer Aviation members.

Section 4 substitutes the cross reference for section 3.2.29 of the Principal Determination. The new cross reference includes reference to the new Division 4A introduced by section 4 of this Determination.

Section 5 substitutes the purpose statement at section 3.2.40 of the Principal Determination. The new purpose statement makes express that Chapter 3 Part 2 Division 4 only applies to the following specialist officers: Chaplains, dental officers, legal officers and medical officers.

Schedule 2 provides for Specialist Officers in aviation in the Defence Determination 2016/19

Section 1 of Schedule 2 inserts a new Division 4A into the Principal Determination. The new Division 4A sets out increment placement, progression and transfer through the Officer Aviation Pay Structure for Air Force Officer Aviation members.

Section 3.2.47A provides a purpose statement for this Division, which is to set out provisions for increment placement, progression and transfer through the Officer Aviation Pay Structure for a member who is an Air Force Officer Aviation member.

Section 3.2.47B sets out a table of the definitions for terms that are to apply in this Division. The terms ‘Air Force Officer Aviation member’, ‘Aviation specialist’, and ‘Officer Aviation Pay Structure’ are defined in DFRT Determination No. 2 of 2017, Salaries, as amended from time to time. The meanings of these terms have been incorporated into this Determination by reference. The term ‘relevant military service’ is based on a similar provision at subsection 3.2.23.1 of the Principal Determination for the wider ADF community. However, the meaning of this term in this Division, is slightly broader in its scope, in that the service may be in the ADF or another military force, rather than confined to a defence force of another Commonwealth country or the United States as in subsection 3.2.23.1.

Section 3.2.47C describes the class of people to whom this Division does not apply. An Air Force aviation specialist who meets any of the three conditions cannot be paid under the Officer Aviation Pay Structure. The three circumstances are:

The member’s experience level in column 2 of Annex 3.2.E is higher than the maximum Officer Aviation increment that the member would be placed on for their rank, specialist pathway and competency stream.
The member has not reached the maximum aviation specialist experience level set out in their Officer Aviation Remuneration Structure aviation specialist agreement.
The member’s Officer Aviation Remuneration Structure aviation specialist agreement has not expired or been cancelled for Service reasons.

Section 3.2.47D sets out the general provisions for increment placement in the Air Force Officer Aviation Pay Structure. Subsection 1 provides that when an ADF member first becomes an Air Force Officer Aviation member or when an Air Force Officer Aviation member is promoted, the officer is to be placed on the minimum increment that corresponds to their rank, pathway and competency stream in the Officer Aviation Pay Structure.

Subsection 2 provides that where section 3.2.47K or section 3.2.47N apply, the Air Force Officer Aviation member is to be placed on an Officer Aviation increment that corresponds to a rate of salary in either Part 3 or Part 4 of Schedule B.14 of DFRT Determination No. 2 of 2017, Salaries, as in force from time to time, that is equal to or greater than the rate of salary payable to the officer immediately before that day. For members of the Permanent Force, Schedule B.14, Part 3 applies; for members of the Reserves, Schedule B.14, Part 4 applies.

The exception provides that this provision does not apply to an Air Force member promoted to the rank of Pilot Officer or Flying Officer.

Section 3.2.47E provides that an Air Force Officer Aviation member is placed on an increment within their competency stream that corresponds to the number of years’ experience that the member has at that rank.

The exception provides that this provision does not apply when section 3.2.47F applies.

Section 3.2.47F sets out the provision for placement on a higher Officer Aviation increment than the minimum (as provided under subsection 3.2.47D.1) in instances when the member has previous service at the new rank or a higher rank. Subsection 2 provides the meaning for the term ‘previous service’. Paragraph a. stipulates that the service is performed at the new rank or a higher rank. Paragraph b. stipulates that the service rendered by the member must be performed at the standard of competence expected for the member’s pathway and competency stream for the new rank, or a higher rank. Paragraph c. deals with previous periods of acting at the new rank or a higher rank. Subparagraph 2.c.ii provides a previous period of relevant military service, be it a broken or unbroken period of service, that the member has previously performed at the new rank or a higher rank can be counted if the CDF considers it contributes to capability in the ADF.

Section 3.2.47G sets out the provision for increment placement in instances of rank reduction. Subsection 1 provides that if an Air Force Officer Aviation member is reduced in rank for a reason under paragraph 14(1)(a), (b) or (c) of the Defence Regulation 2016, as in force from time to time, the CDF may approve an Officer Aviation increment of the lower rank for the member’s pathway and competency stream. Three factors must be considered by CDF in deciding the new rate of salary: the member’s previous service at the lower rank; the member’s relevant service in the higher rank; and the circumstances of the reduction in rank. The same direction is given to the CDF in making a similar decision for members of the wider ADF community at section 3.2.38 of the Principal Determination.

Subsection 3 provides that if the CDF has reduced the member’s rank under paragraph 14(1)(d) of the Defence Regulation 2016, as in force from time to time, the member is to continue to be paid the rate of salary that corresponds with the Officer Aviation increment the member held immediately before the reduction in rank.

Section 3.2.47H provides that for an Air Force aviation specialist who becomes an Air Force Officer Aviation member is placed in the Officer Aviation Pay Structure as set out in the conversion table at Annex 3.2.E (Officer Aviation Specialist Structure to Officer Aviation Pay Structure — conversion table), introduced by Schedule 3 of this Determination.

An administrative note has been added to remove doubt, that transfer from the Officer Aviation Specialist Structure under Schedule B.14, Part 1 or Part 2, of DFRT Determination No. 2 of 2017, Salaries, as in force from time to time, to the Officer Aviation Pay Structure under Schedule B.14, Part 3 or Part 4, of the same determination does not affect or change in any way the officer’s increment advancement date.

Section 3.2.47I sets out general provisions for increment placement when transferring between the pathways and competency streams of the Officer Aviation Pay Structure. Subsection 1 provides that this section applies to an Air Force Officer Aviation member who is in any of the following circumstances: the member’s request to transfer has been approved, the member’s specialist pathway agreement expires, or the Service decides to transfer the member.

Subsection 2 sets out the manner in which an Air Force Officer Aviation member may be placed in a gaining pathway following a transfer of pathways in the Officer Aviation Pay Structure.

Paragraph a. provides that if the member’s Officer Aviation increment is at or above the maximum increment permitted by the gaining pathway and relevant competency stream, the member continues to hold their Officer Aviation increment.

In practical terms, this means that the member will generally not be eligible for the next Officer Aviation increment, irrespective of the passage of time, and will stay on their increment until either

the member is promoted to a higher rank which permits further advancement to a higher increment; or
the member changes their competency stream to one which permits further advancement to a higher increment.

When either of these events occur, the member may be eligible to be placed on either the lowest increment for the member’s rank, pathway and competency stream, or the next highest increment above their current increment that is available in the member’s rank, pathway and new competency stream range.

Paragraph b. provides that if the member’s Officer Aviation increment is above the minimum and below the maximum increment permitted by the gaining pathway and relevant competency stream, the member continues to hold their Officer Aviation increment.

In practical terms, this means that the member will remain on that Officer Aviation increment until the member is eligible for an increment advancement under section 3.2.47L.

Paragraph c. provides that if the member’s Officer Aviation increment is below the minimum increment for the gaining pathway and relevant stream, the member is placed at the minimum increment for the member’s rank, gaining pathway and competency stream.

The CDF may exercise the discretion to approve an Officer Aviation increment above the minimum in the Officer Aviation Pay Structure as provided at subsection 3.2.47J.3. This discretion, however, does not apply to an officer promoted to the rank of Officer Cadet.

Subsection 3 sets out the manner in which an Air Force Officer Aviation member may be placed in a gaining competency stream of their pathway following a transfer of competency streams in the Officer Aviation Pay Structure.

Paragraph a. provides that if the member’s Officer Aviation increment is at or above the maximum increment permitted by the relevant pathway and gaining competency stream, the member continues to hold their Officer Aviation increment.

the member is promoted to a higher rank which permits further advancement to a higher increment; or
the member changes their pathway to one which permits further advancement to a higher increment.

Paragraph b. provides that if the member’s Officer Aviation increment is above the minimum and below the maximum increment permitted by the relevant pathway and gaining competency stream, the member continues to hold their Officer Aviation increment.

In practical terms, this means that the member will remain on their Officer Aviation increment until the member is eligible for an increment advancement under section 3.2.47L.

Paragraph c. provides that if the member’s Officer Aviation increment is below the minimum increment for the relevant pathway and gaining competency stream, the member is placed on the minimum increment for the member’s rank, pathway and gaining competency stream.

The CDF may exercise the discretion to approve an Officer Aviation increment above the minimum in the Officer Aviation Pay Structure as provided at subsection 3.2.47J.4. This discretion, however, does not apply to an officer promoted to the rank of Officer Cadet.

Section 3.2.47J sets out the CDF discretions relating to placement of Air Force members in the Officer Aviation Pay Structure.

Subsection 1 provides that the discretions provided in this section do not apply to an Officer Cadet.

Subsection 2 provides that CDF may place a member who is entering the Officer Aviation Pay Structure on an Officer Aviation increment that is between the minimum and maximum Officer Aviation increments for the member’s rank, pathway and competency stream.

The same limitation is imposed on the CDF in making a similar decision for members of the wider ADF community at subsection 3.2.23.3 of the Principal Determination. Generally this provision may apply to recruits from foreign military service, transfers from other arms of the ADF, and personnel returning to the Royal Australian Air Force following a break in continuous full-time service.

Subsection 3 provides a CDF discretion to place an Air Force Officer Aviation member on a higher Officer Aviation increment if the member meets the conditions set out at paragraph 3.2.47I.2.c.

Subsection 4 provides a CDF discretion to place an Air Force Officer Aviation member on a higher Officer Aviation increment if the member meets the conditions set out at paragraph 3.2.47I.3.c.

Subsection 5 makes express that the CDF must take the listed factors into consideration when making a decision under subsections 2, 3 and 4. The same direction is given to the CDF in making a similar decision for members of the wider ADF community at subsection 3.2.23.4 of the Principal Determination.

Section 3.2.47K sets out the eligibility conditions for Air Force members who are not aviation specialists. An Air Force member who is not an aviation specialist who meets one of the three following conditions may become an Air Force Officer Aviation member.

Paragraph a. provides that a member in an air traffic control employment category who is promoted to a rank between Flight Lieutenant and Group Captain, inclusive, and completes their initial minimum period of service, may be eligible to become an Air Force Officer Aviation member.

Paragraph b. provides that a member not in an air traffic control employment category who is promoted to a rank between Flight Lieutenant and Group Captain, inclusive, and meets the conditions for the relevant item in the table, may be eligible to become an Air Force Officer Aviation member.

An exception has been provided which relates to Air Force members who are not in air traffic control and who are promoted from Flight Lieutenant to Squadron Leader. For an officer who is promoted to Squadron Leader, the officer must meet the following conditions to be eligible to become an Air Force Officer Aviation member and be placed at an officer Aviation increment under subsection 3.2.47D.2.

The officer was paid a rate of salary as a Flight Lieutenant immediately before their promotion as a Flight Lieutenant at an increment between O3 – 0 and O3 – 4, inclusive, in Schedule B.3 of DFRT Determination No. 2 of 2017, Salaries, as in force from time to time; and
The officer is in a competency progression employment category between pay grade 5 and pay grade 9, inclusive, in Part 4 of Schedule B.2 of DFRT Determination No. 2 of 2017, Salaries, as in force from time to time.

If not for this exception, some officers on the Graded Officer Pay Structure - competency system – who are promoted to Squadron Leader may experience a delay of three years to transition to the Officer Aviation Pay Structure under the provisions set out at table item 2. In practical terms, without this exception, a high performing Flight Lieutenant who is promoted to Squadron Leader prior to achieving Flight Lieutenant increment 5 would be prevented from transitioning to the Officer Aviation Pay Structure, and would suffer a financial disadvantage by being held back. Further, such an outcome would exacerbate some of the future retention issues with the Graded Officer Pay Structure - competency system that the Officer Aviation Pay Structure aims to address.

Paragraph c. provides that an officer in Officer Aviation who meets either of the two conditions may be eligible to become an Air Force Officer Aviation member. One condition applies to an officer paid at increment O3 – 3 in Schedule B.4 of DFRT Determination No. 2 of 2017, Salaries, as in force from time to time. The other condition applies to an officer whose salary is administered by the provisions set out in section B.2.5 of DFRT Determination No. 2 of 2017, Salaries, as in force from time to time—specifically table items 1.c, 2.a.ii or 2.b.ii.

When a member meets one of the conditions and becomes an Air Force Officer Aviation member, the member is to be placed at the relevant Aviation Officer increment under subsection 3.2.47D.2. This rule does not to apply to an Air Force member who is promoted to the rank of Pilot Officer or Flying Officer.

The meaning of ‘Officer Aviation’ is taken from the definition provided in the table at subsection A.1.11.3 of DFRT Determination No. 2 of 2017, Salaries, as in force from time to time.

Section 3.2.47L sets out the conditions for increment advancement in the Officer Aviation Pay Structure. Subsection 1 provides that an Air Force Officer Aviation member may advance to the next Officer Aviation increment at the end of the advancement period (‘advancement period’ is defined in subsection 3.2.47L.3) if the member meets all of the prescribed conditions.

Subsection 2 makes express that an Air Force Officer Aviation member may not receive more than one increment advancement under this section in any 12 month period.

An administrative note has been added. The note makes clear that some Air Force Officer Aviation members may be eligible to more than one increment advancement in a 12 month period as provided under the transition provisions in DFRT Determination No. 3 of 2018, Salaries – Officer Aviation Pay Structure – amendment.

Subsection 3 provides the meaning of the term ‘advancement period’ for the purposes of this section. It refers to any of the following periods of service:

For a member in the Permanent Forces — 12 months of service.
For a member in the Reserves (providing Reserve service and continuous full-time service) — 20 or more days of Reserve service in a 12 month period.
For a member who served in both the Permanent Forces and Reserves in a 12 month period — 20 days of service.

An administrative note has been added to make clear that any period when the member is on leave without pay or is absent without leave cannot be counted.

Subsection 4 applies to an officer of the Reserves. The subsection provides that for the purposes of meeting the advancement period under subsection 3.2.47L.3, a day of Reserve service is calculated based on the proportion or the daily rate the member is paid for the duty under section A.1.5 of DFRT Determination No. 2 of 2017, Salaries. In practical terms this means if a member is paid one third of the daily rate under section A.1.5 of DFRT Determination No. 2 of 2017, Salaries, as in force from time to time, the member has completed one third of a days' Reserve service.

Subsection 5 provides that if an Air Force Officer Aviation member does not advance to the next increment as a result of not meeting the condition under paragraph 3.2.47L.1.b, the member may be eligible for an increment advancement four months from the day on which the officer did not advance.

An administrative note has been added to make clear that an increment advancement under this subsection does not affect the date a member may be eligible for their next increment advancement under subsection 3.2.47L.1.

Section 3.2.47M sets out special provisions for Air Force Officer Aviation members who transfer to the specialist pathway. For a member transferring to the specialist pathway, the member continues to hold their Officer Aviation increment.

Section 3.2.47N sets out provisions for Air Force members who transfer from other salary structures into the Officer Aviation Pay Structure.

Subsection 1 provides that this subsection applies to an Other Rank member who becomes an Air Force Officer Aviation member and both of the following paragraphs apply. Paragraph a. provides that the member must have been placed on an Officer Aviation increment under this Division.

Paragraph b. provides that unless the rate of salary that the member would have been paid under the Officer Aviation Pay Structure is higher than the member’s current rate of salary, the member continues to be paid that rate of salary until the member’s Officer Aviation increment rate of salary under paragraph a. is equal to or greater than the member’s current rate of salary.

An administrative note has been added to make clear that despite the application of paragraph b., the increment advancement provisions apply to the member. In practical terms it means that whenever a member is promoted, given an increment advancement, or transfers pathways or competency streams the Officer Aviation increment rate of salary must be compared to the member’s current rate of salary. Only when the member’s Officer Aviation increment rate of salary is equal to or greater than the member’s current rate of salary does the Officer Aviation increment salary take precedence.

Subsection 2 provides that if the CDF transfers a member at any time from any salary structure (for example, the Graded Officer Pay Structure, the Officer Aviation Salary Structure, transitional salary structure in Schedule B.4 of DFRT Determination No. 2 of 2017, Salaries, as in force from time to time) to the Air Force Officer Aviation Pay Structure for Service reasons, the member would become an Air Force Officer Aviation member and be paid a rate of salary as determined by subsection 3.2.47D.2.

Schedule 3 provides for Specialist Officers in aviation in the Defence Determination 2016/19

Section 1 inserts a new Annex 3.2.E into the Principal Determination. The new Annex provides a conversion table between the Aviation Specialist experience levels set out in Schedule B.14, Part 1 and Part 2, of the DFRT Determination, and the Officer Aviation increments set out in Schedule B.14, Part 3 and Part 4, of the DFRT Determination.

Consultation

Internal consultation with Air Force was undertaken in relation to the provisions introduced by this Determination.

External consultation is not considered necessary in the making the other changes made by this Determination as it makes minor amendments and technical adjustments.

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 (Administration of Salary for Officer Aviation Pay Structure) Determination 2018 (No. 19)

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 amendments to Defence Determination 2016/19, Conditions of service.

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.

On 3 May 2018, the new Officer Aviation Pay structure (new pay structure) for members of the Royal Australian Air Force will commence. The new pay structure will resolve issues that the Air Force was facing in relation to the Officer aviation workforce and will better support the Air Force's objective of resource effective air power for Australia's interest. On the commencement of the new structure, Air Force members will be transferred from the previous pay structures to the new pay structure.

This Determination provides the increment placement, progression and transfer through the Officer Aviation Pay Structure for Air Force Officer Aviation members. This will ensure that members who are transferred to the new pay structure will be placed in the correct increment level within the new pay structure.

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

Defence Determination, Conditions of Service Amendment (Administration of Salary for Officer Aviation Pay Structure) Determination 2018 (No. 19)

Administered by Department of Defence

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