Defence Determination, Conditions of service Amendment Determination 2021 (No. 14)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment Determination 2021 (No. 14)

This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 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 a 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 obligation 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 do the following:

• Amend the eligibility conditions for when an Army member is eligible for the salary of a Private Proficient. The amendments reflect updated policy and clarify how the policy applies.
• Update references to ‘textbook’ to ‘learning materials’ to broaden the benefit available to members studying at the Australian Defence Force Academy.
• Provide assistance with the cost of purchase or hire of civilian clothing to meet representational requirements associated with the role of the Personal Assistant to the Chief of the Defence Force.
• Establish a housing trial in various location that is similar to the existing Puckapunyal Housing trial. The trial allows members flexibility to have their posting location extended for reasons relating to partner education and employment and access to services for dependants with special needs. Members participating in the trial will have access to housing benefits in the extended location. The trial will provide valuable data on options to alleviate some of the pressures faced by members and their families as a consequence of service life. The trial will end on 31 December 2023.

Operational details

Details of the operation of the Determination are provided at annex A.

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, the following consultation was undertaken:

• Schedule 1: consultation was undertaken with the Army.
• Schedule 2: consultation was undertaken with the Army, Navy and Air Force.
• Schedule 3: consultation was undertaken with the Office of the Chief of the Defence Force.
• Schedule 4: consultation was undertaken Navy, Army and the Air Force, Estate and Infrastructure Group, and Defence Finance Group.

The rule maker was satisfied that further external consultation was not required.

Annex A

Defence Determination, Conditions of service Amendment Determination 2021 (No. 14) Operational details

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

Section 2 provides the following commencement dates:

• Sections 1 to 4 of the Determination and anything in the Determination not elsewhere covered by the table commences on the day after the instrument is registered.
• Schedules 1 to 3 of the Determination on 5 August 2021.
• Schedule 4 of the Determination on 2 September 2021.

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—Salary – Private Proficient amendments

Section 1 omits and substitutes section 3.2.37 of the Principal Determination which provides when an Army member who holds the rank of Private is eligible for the salary of a Private Proficient. The remade section provides the following changes.

• A member on continuous full-time service is eligible for Private Proficient salary if they have provided at least 12 months of service.
• A member on Reserve service is eligible for Private Proficient salary from 12 months after completing initial employment category training, if they have served for at least 20 days in a year.

In both circumstances, only days for which the member is eligible to receive salary count towards meeting the time criteria.

Schedule 2—ADFA textbooks amendments

Section 1 amends the title of Chapter 4 Part 8 Division 4 of the Principal Determination. The title is amended so that the language remains consistent with the changes made by this schedule.

Sections 2 and 3 omit and substitute sections 4.8.19 and 4.8.21 of the Principal Determination which provide the purpose statement for Chapter 4 Part 8 Division 4 and that a member is eligible to be reimbursed for the cost of purchasing compulsory textbooks for their course. The sections are redrafted so that members who are eligible for reimbursement for compulsory learning materials are not limited to reimbursements for textbooks. The sections are also redrafted to reflect contemporary drafting standards.

Schedule 3—Representational clothing benefits amendments

Section 1 amends Chapter 10 Part 3 of the Principle Determination. The title of Part 3 has been amended to replace reference to “Aide-de-camp and ADF advisor benefit” with “Aide-de-camp, ADF advisor and other specified persons benefit” to better reflect the benefits which are provided by the part.

Section 2 amends section 10.3.1 of the Principal Determination which provides the purpose of Chapter 10 Part 3. The section has been redrafted to better reflect the purpose of the benefit, which is to provide members who are performing specific roles with the cost of purchase or hire of civilian clothing, to meet the clothing requirements associated with representational duties.

Section 3 amends section 10.3.2 of the Principal Determination which provides members that Chapter 10 Part 3 applies to. Paragraph 10.3.2.1.d has been inserted, which provides that the Personal Assistant to the CDF is eligible to receive the clothing benefit provided under Part 3.

Section 4 amends section 10.3.3 of the Principal Determination which provides members with a reimbursement of the cost of purchase or hire of clothing to meet the representation requirements associated with their role. The section also provides the maximum amount a member can receive. The section title has been amended to better reflect the benefits which are provided by the section.

Schedule 4—Flexible housing trial amendments

Section 1 amends subsection 1.3.55.1 of the Principal Determination, which defines ‘posting location’. The amendment omits and remakes paragraph d. of the subsection to include an area extended under section 7.1.16B of this Schedule for the purpose of the flexible housing trial.

Section 2 omits and substitutes section 6.5.5 of the Principal Determination, which specifies when a member is not eligible for a removal under Chapter 6 Part 5. The section has been remade to insert members participating in the flexible housing trial. These members are not eligible for a removal to move to a home in the extended posting location under the flexible housing trial or on return to their standard posting when they cease participating in the flexible housing trial. This does affect their right to a removal to their next posting location.

Section 3 amends the table in section 7.1.15 of the Principal Determination, which provides an expanded definition of ‘posting location’. The amendment omits table item 12, which refers to the Puckapunyal housing trial, as it is no longer necessary as a consequence of changes made by sections 7, 8 and 9 of this Schedule.

Section 4 inserts section 7.1.16B into the Principal Determination. Section 7.1.16B provides the circumstances when a member is participating in the flexible housing trial. This requires the member to be posted to a command unit at one of a number of specified establishments or to a HMA Ship or submarine that is home ported at Fleet Base West, and for the CDF to extend the member’s posting location. In doing so, the CDF must be satisfied that the extension of the member’s posting location will not adversely affect the member’s ability to attend for duty and that the member’s reason for seeking the extension is for one of 4 reasons relating to the employment or study of their partner or to access professional services for a dependant with special needs. As the flexible housing trial is limited in the number of participants, the CDF must also be satisfied that the extension of the posting location will not exceed the number of participants in the trial. The section also prevents the CDF from making a decision under the section after 31 December 2023.

Section 5 amends subsection 7.6.34.2 of the Principal Determination, which provides the reasons for rejecting a reasonable offer of a Service residence. The amendment adds the new reason of the Service residence not meeting reasons the member requested an extension of their posting location for the purpose of the flexible housing trial.

Section 6 omits section 7.8.5A of the Principal Determination, which enables a member to receive rental allowance when they cease to participate in the Puckapunyal housing trial. The section has been omitted as it is no longer required for the purpose of the Puckapunyal housing trial.

Section 7 amends section 7.8.9 of the Principal Determination, which identifies the rate of a member’s rent ceiling by cross reference to annex 7.E that is used in the calculation of rent allowance. The amendment inserts subsection 3A to identify which location specified in the annex is to be used to determine the member’s rent ceiling. For a flexible housing trial member, this is the location where the member lives.

Section 8 and 9 amend section 7.8.10 of the Principal Determination, which identifies the rate of a member’s rent ceiling by cross reference to annex 7.E that is used in the calculation of rent allowance. Section 8 removes unnecessary text from subsection 1, specifically in relation to ‘posting location’. Section 9 inserts subsection 3 to identify which location specified in annex 7.E is to be used to determine the member’s rent ceiling.

Section 10 amends the title of section 7.8.11 of the Principal Determination to make it consistent with the content of the section as a consequence of changes made by section 11 of this Schedule.

Section 11 amends subsection 7.8.11.1 of the Principal Determination, which specifies who the section applies to and provides the rule for the member’s rent ceiling if there is no location specified in Annex 7.E of the Principal Determination that corresponds with the location on which the member’s rent ceiling is based. The amendment separates these two provisions into individual subsections. Also, consistent with changes made by sections 7, 8 and 9 of this Schedule, the section applies to the ‘location’ for which a rent ceiling has not been determined, rather than a ‘posting location’.

Annex B

Defence Determination, Conditions of service Amendment Determination 2021 (No. 14)

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 to do the following:

• Amend the eligibility conditions for when an Army member is eligible for the salary of a Private Proficient. The amendments reflect updated policy and clarify how the policy applies.
• Update references to ‘textbook’ to ‘learning materials’ to broaden the benefit available to members studying at the Australian Defence Force Academy.
• Provide assistance with the cost of purchase or hire of civilian clothing to meet representational requirements associated with the role of the Personal Assistant to the Chief of the Defence Force.
• Establish a housing trial in various location that is similar to the existing Puckapunyal Housing trial. The trial allows members flexibility to have their posting location extended for reasons relating to partner education and employment and access to services for dependants with special needs. Members participating in the trial will have access to housing benefits in the extended location. The trial will provide valuable data on options to alleviate some of the pressures faced by members and their families as a consequence of service life. The trial will end on 31 December 2023.

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.

Right to an adequate standard of living

The protection of a person's right to an adequate standard of living engages Article 11 of the International Covenant on Economic, Social and Cultural Rights. Article 11 recognises the right of everyone to an adequate standard of living for them and their family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

Assessment of compatibility

Schedule 1 of the Determination is compatible with human rights as provides fair pay to an member of the Army who holds the rank of Private while recognising the experience that have acquired in the year since they completed initial employment training.

Schedule 2 of this Determination is compatible with human rights as it promotes just and favourable conditions of work by ensuring undergraduate members at the Australian Defence Force Academy are not financially disadvantaged as a result of purchasing compulsory learning materials.

Schedule 3 of the Determination is compatible with human rights as it promotes just and favourable conditions of work by recognising the additional work requirements of undertaking the role of Personal Assistant to the CDF who are frequently required to be in similar and appropriate civilian attire for security and protocol purposes when supporting of the CDF.

Schedule 4 of the Determination is compatible with human rights as it provides beneficial conditions of service to members, enabling them to live closer to places of employment, study of a member’s partner or service providers for dependant who have a recognised special need.

Conclusion

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.