EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Aviation – increment placement, progression and transfer) Determination 2018 (No. 21)
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 amendments to the administrative rule sets governing 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 the date of signature.
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4 of this Determination provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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
Section 1 amends subsection 3.2.47D.1 of the Principal Determination which provides an Air Force Officer Aviation member’s placement in the Officer Aviation Pay Structure when the member becomes an Air Force Aviation member. The word ‘promoted’ has been inserted as an adjective of ‘rank’ to make certain that the Air Force Officer Aviation member’s increment placement is based on their promoted rank, which is provided under paragraph 13(1)(a) of the Defence Regulation 2016, as in force from time to time. This means that a member who is directed to act at a higher rank at the time of transferring to the Officer Aviation Pay Structure is not eligible to be placed in the Officer Aviation Pay Structure, until their period of acting has concluded.
Section 2 amends section 3.2.47K of the Principal Determination which provides that an Air Force member will become an Air Force Officer Aviation member when they meet one of the conditions contained in the section. The section has been amended to provide that when an Air Force member meets one of the conditions, they will become an Air Force Officer Aviation member the day after they have met the condition. This ensures that the salary determined under subsection 3.2.47D.2 of the Principal Determination will be the increment that is equal to or greater than the rate of salary payable to the officer immediately before being eligible to receive salary under the Officer Aviation Pay Structure.
Sections 3 and 4 amend subparagraphs 3.2.47K.a.i and 3.2.47K.b.i of the Principal Determination which provide the eligibility criteria for transfer to the Officer Aviation Pay Structure for a member who is not an aviation specialist. The amendment substitutes the word ‘holds’ for ‘has been promoted under paragraph 13(1)(a) of the Defence Regulation 2016 to’ in reference to rank. This amendment gives certainty that the references to rank in these placement provisions for members who are eligible to become Air Force Officer Aviation members is specifically relating to that member’s promoted rank, as provided under paragraph 13(1)(a) of the Defence Regulation 2016, as in force from time to time. This means that a member who is directed to act at a higher rank is not eligible for transfer to the Officer Aviation Pay Structure until their period of acting rank has concluded.
Section 5 amends subsection 3.2.47N.1 of the Principal Determination which provides transfer provisions from other salary structures into the Officer Aviation Pay Structure. Subsection 1 of the Principal Determination was intended to only apply to Other Rank members described in this subsection and is not intended to also apply to the class of persons described in subsection 2. Hence, ‘section’ has been substituted with ‘subsection’ to restore the respective applications of provision in section 3.2.47N.
Section 6 also amends subsection 3.2.47N.1 of the Principal Determination. This amendment inserts an exception to the application of this provision. Subsection 3.2.47N.1 is not intended to apply to Other Rank members who have been directed to act at a higher rank. If not for this exception, members who met the conditions of eligibility while directed to act at a higher rank could potentially be placed at an incorrect increment in the Officer Aviation Pay Structure.
Section 7 amends subsection 3.2.47N.2 of the Principal Determination. The provision provides that a member is to be paid a rate of salary determined under subsection 3.2.47D.2 of the Principal Determination if they are transferred into the Officer Aviation Pay Structure for from another pay structure. This section has been amended to remove reference to the CDF. The determination enables a member to be paid a rate of salary in the Officer Aviation Pay Structure in response to an event, in this case a move from another pay structure to the Officer Aviation Pay Structure. The rule can be made without reference to the CDF. This provides clarity that the move between pay structures is not a decision made under the Determination. This subsection provides increment placement in the event that a member is transferred.
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 (Aviation – increment placement, progression and transfer) Determination 2018 (No. 21)
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 provide amendments to the administrative rule sets governing 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.
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 clarity around increment placement, progression and transfer through the Officer Aviation Pay Structure for ADF members, to ensure that they receive just and favourable remuneration in accordance with Article 7.
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.
Elizabeth Anne Sisley, Acting Assistant Secretary People Policy and Employment Conditions