EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Christmas stand-down) Determination 2018 (No. 28)
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.
This Determination amends the following Chapters of the Principal Determination.
- Chapter 5 sets out provisions dealing with leave for members of the Australian Defence Force (ADF).
- Chapter 15 sets out provisions dealing with living and working on long-term posting overseas for members of the ADF.
The purpose of this Determination is to set the Christmas stand-down periods for 2018-2019 and
2019-2020.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 12 July 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 section 1 omits and substitutes subsection 5.12.3.1 of the Principal Determination, which sets out the days members are not required for duty over the Christmas stand-down period. The dates have been updated to reflect the Christmas stand-down periods for 2018-2019 and 2019-2020.
Section 2 omits and substitutes the table in subsection 15.1.5.1 of the Principal Determination, which sets out the days members living and working on a long-term posting overseas are not required for duty over the Christmas stand-down periods for 2018-2019 and 2019-2020. The dates have been updated to reflect the Christmas stand-down periods for 2018-2019 and 2019-2020.
Consultation
Consultation is not considered necessary in the adjustment of the Christmas stand-down periods as this falls within the bounds of routine maintenance of an established benefit.
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 (Christmas stand-down) Determination 2018 (No. 28)
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 set the Christmas stand-down periods for 2018-2019 and
2019-2020.
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.
The Christmas stand-down is a period of reduced activity across Defence. Typically members will not be required to attend for duty over the stand-down period. The stand-down provisions allow members to be paid for leave over this period of time without using their accrued leave credits.
This Determination provides the 2018-2019 and 2019-2020 Christmas stand-down dates. This is equal to what is offered to Defence Australian Public Service employees and it is beyond Australian community standards of leave and public holidays at Christmas time.
Conclusion
This Determination is compatible with human rights because it does not limit any human rights.
Elizabeth Anne Sisley, Acting Assistant Secretary People Policy and Employment Conditions
Overview
The Defence Determination, Conditions of Service Amendment (Christmas stand-down) Determination 2018 (No. 28) amends Defence Determination 2016/19, Conditions of service, under section 58B of the Defence Act 1903. This instrument, introduced by the Commonwealth of Australia, updates the Christmas stand-down periods for 2018-2019 and 2019-2020 for members of the Australian Defence Force. The determination sets the specific days members are not required for duty, aligning these provisions with those offered to Defence Australian Public Service employees and surpassing Australian community standards of leave and public holidays during the Christmas period. The objective of this amendment is to ensure that Defence personnel enjoy fair and favourable working conditions that are consistent with public sector standards.
This Determination, issued by the Minister for Defence, is consistent with human rights as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011, particularly regarding the right to just and favourable conditions of work. By maintaining the Christmas stand-down periods, the Determination upholds the principles of remuneration, safe and healthy working conditions, equal opportunity, and reasonable limitations, without infringing on any human rights. The amendment ensures that Defence personnel can benefit from a period of reduced activity and paid leave without depleting their accrued leave credits, thereby aligning with community standards and offering equitable conditions of service.
Scope and Application
The Defence Determination, Conditions of Service Amendment (Christmas stand-down) Determination 2018 (No. 28) amends the Defence Determination 2016/19, Conditions of service, which is made under section 58B of the Defence Act 1903. This Determination applies to members of the Australian Defence Force (ADF), setting the Christmas stand-down periods for 2018-2019 and 2019-2020. It is a disallowable legislative instrument subject to the Legislation Act 2003 and is interpreted according to the principles in the Acts Interpretation Act 1901, as modified by section 58B of the Defence Act. The changes include updating the days members are not required for duty over the Christmas stand-down periods. This Determination has authority under section 58B of the Defence Act 1903 and is compatible with human rights, offering leave and conditions that meet or exceed community standards.
Key Provisions
The main operative sections of this Determination (sections 4 and 5.12.3.1, and subsection 15.1.5.1) amend the Defence Determination 2016/19, specifically updating the Christmas stand-down periods for 2018-2019 and 2019-2020. The stand-down periods are times when Australian Defence Force (ADF) members are not required for duty, and during which they are paid for leave without using their accrued leave credits. The updated dates ensure that these periods align with those offered to Defence Australian Public Service employees and exceed community standards for leave and public holidays at Christmas.
The obligations imposed by this Determination include the specification of the dates when ADF members are not required for duty during the Christmas stand-down periods. For members on long-term overseas postings, these obligations also include the provision of leave without the use of accrued leave credits. This ensures that ADF members, including those stationed overseas, are aware of their entitlements and can plan accordingly during these periods. The determination also reinforces the Defence Act's provisions on conditions of service and the entitlements of ADF members.
Breach of the provisions outlined in this Determination could lead to administrative or disciplinary action, although the Determination itself does not specify criminal or civil penalties. The Defence Act and other relevant legislation would govern any disciplinary or administrative actions. The Defence Act provides for a range of penalties for breaches, including fines and imprisonment, depending on the severity of the offence. It is essential for ADF members to adhere to the specified stand-down periods and leave entitlements to avoid any potential consequences under the broader Defence Act framework.