EXPLANATORY STATEMENT
Defence Determination, Conditions of service Amendment (Continuation bonus) Determination 2023 (No.7)
This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 (Defence Act) and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AI Act).
Determinations made under section 58B of the Defence Act are disallowable legislative instruments subject to the Legislation Act 2003 (Legislation Act). These instruments are also subject to the interpretation principles in the AI Act.
This Determination amends the Principal Determination which provides benefits for members of the Australian Defence Force (ADF) and their families as part of the member’s conditions of service. The Principal Determination provides a range of benefits that recognise the unique nature of military service and the obligations and limitations that military service places on members and their families. Members undertake service in both the domestic and overseas environments, including on deployments. Specific benefits are provided for each environment.
Purpose
The purpose of this Determination is to create the continuation bonus to promote the retention of members in the ADF. The bonus provides a payment to members who have completed their service obligation that was applied on their initial entry into the Permanent Forces and have also served in the ADF for 4 years. Receipt of the bonus is conditional on members agreeing to complete a further 3 years of service in the Permanent Forces.
The continuation bonus is a pilot scheme that will be open to members for 2 years.
Operational details
Details of the operation of the Determination are provided at annex A.
Incorporation by reference
The Principal Determination makes references to the Defence Force Discipline Act 1982 and the Defence Regulation 2016 (the Defence Regulation), which are incorporated into the Principal Determination as in force from time to time. Section 1.2.5A of the Principal Determination specifies that a reference to an Act of Parliament or a legislative instrument to which section 14(3) of the AI Act applies are incorporated as in force from time to time, unless otherwise stated.
The Principal Determination also references determinations that are made by the Defence Force Remuneration Tribunal (DFRT), which are instruments other than legislative instruments. Section 58B(1A) of the Act permits DFRT determinations being adopted in this Determination in accordance with section 14(1)(b) of the Legislation Act as in force from time to time. Unless otherwise specified, DFRT determinations are incorporated into the Principal Determination as in force from time to time.
Human rights compatibility
The statement of compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 for this Determination is at annex B.
Review options
Decisions that are made under the Principal Determination, as amended by this Determination, may be subject to inquiry under the ADF redress of grievance system provided under Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.
Consultation
Before this Determination was made, Navy Army and Air Force, the Recruitment and Retention Division and People Systems and Payroll Services branch in Defence People Group.
The rule maker was satisfied that further consultation was not required.
Approved by: | Fiona Louise McSpeerin Assistant Secretary People Policy and Employment Conditions
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Authority: | Section 58B of the |
Annex A
Defence Determination, Conditions of service Amendment (Continuation bonus)
Determination 2023 (No. 7)
Operational details
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this Determination commences on 1 July 2023.
Section 3 provides that this instrument has authority under section 58B of the Defence Act.
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—Continuation bonus amendments
Item 1 adds at the end of Part 3 to Chapter 3 of the Principal Determination a new part to establish the continuation bonus. Specifically, item 1 inserts the following.
- Section 3.4.1, which specifies the purpose of the continuation bonus.
- Section 3.4.2, which provides the definitions that apply to the Part, and include the bonus amount, and the agreed period of service.
- Section 3.4.3, which specifies the criteria for a valid offer for the continuation bonus to be made to a member.
- Section 3.4.4, which specifies the criteria for a valid acceptance of an offer made under section 3.4.3. The day on which the offer must be accepted by may be extended by up to 6 months after the day specified in the offer by the recommending authority.
- Section 3.4.5, which defines the commencement day of an agreed period of service.
- Section 3.4.6, which defines effective service for a member who is not the subject of a flexible service determination. For the purpose of acquitting the agreed period of service, effective service only includes days in the Permanent Forces. However, for other purposes, it includes any days on which the member may been providing continuous full-time service as a member of the Reserves.
- Section 3.4.7, which defines effective service for a member who is the subject of a flexible service determination. This definition is modified for members who are subject to a flexible service determination. For the purpose of acquitting the agreed period of service, effective service only includes days in the member’s pattern of service in the Permanent Forces.
- Section 3.4.8, which specifies who Part 4 of Chapter 4 applies to. The Part only applies to members of the Permanent Forces and does not extend to members of the Reserves providing continuous full-time service.
- Section 3.4.9, which specifies who the Part does not apply to. This includes members with a military employment classification of J5, members with less than 3 years and 6 months left to serve in the Permanent Forces, lateral recruits and members who have previously received the continuation bonus. A member is only able to get the bonus once.
- Section 3.4.10, which provides who is eligible to be offered a continuation bonus. This includes members who are within 90 days of completing 4 years of continuous effective service or their service obligation that was imposed when they first joined the ADF. A member is not eligible to receive the bonus if they have had a break in continuous full-time service. For example, after completing a period of continuous full-time service as a member of the Reserves, the member had a break before becoming a member of the Permanent Forces.
- Section 3.4.11, which provides when a member is eligible to accept an offer for the continuation bonus. A member is able to accept a valid offer for the continuation bonus provided they are not the subject to a notice proposing the termination of their service in the ADF. Once a decision is made on the termination notice, the member made be eligible to accept the offer.
A member is also not able to accept a valid offer after 30 June 2025, which is the last day of the pilot scheme.
- Section 3.4.12, which provides when a member can be paid the continuation bonus. The member is able to choose to receive the bonus in 1 or 2 payments. The first payment is payable from the commencement day of the agreed period of service as specified in the valid offer. If the commencement day changes as a consequence of the delay in completing another service obligation, the day the continuation bonus becomes payable does not change.
If the member chooses to receive the bonus in 2 payments, the second half of the bonus is payable 12 months after the first payment. However, if the member ceases to be a member of the Permanent Forces under the Defence Regulation due to medical unfitness or redundancy, the second payment is payable from the day their service is terminated.
- Section 3.4.13, which provides when a member ceases to be eligible for the continuation bonus. This applies when a member’s service in the Permanent Forces is terminated under the Defence Regulation for a reason other than medical unfitness or redundancy.
- Section 3.4.14, which provides the circumstances in which a member must repay the continuation bonus. This includes when the member takes action to end their service in the Permanent Forces before they complete their agreed period of service or if their service in the Permanent Forces is terminated on performance or behaviour grounds, or they are dismissed under the Defence Force Discipline Act.
Annex B
Defence Determination, Conditions of service Amendment (Continuation bonus)
Determination 2023 (No. 7)
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Overview of the Determination
The purpose of this Determination is create the continuation bonus to promote the retention of members in the ADF. The bonus is to provides a payment to members who have completed their service obligation that was applied on their initial entry into the Permanent Forces and had served in the ADF for 4 years. Receipt of the bonus is conditional on members agreeing to complete a further 3 years of service in the Permanent Forces.
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.
Assessment of compatibility
This Determination is compatible with human rights as it provides a monetary benefit to members of the ADF as a part of their conditions of service to encourage them to provide an additional 3 years of service.
Conclusion
This Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.