Defence Determination, Conditions of service Amendment Determination 2021 (No. 4)

Defence Determination, Conditions of service Amendment Determination 2021 (No. 4)

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. These instruments are also subject to the interpretation principles in the AI Act.

This Determination amends the following Chapters of the Principal Determination for members of the Australian Defence Force (ADF).

• Chapter 2 which sets out provisions relating to joining and leaving.
• Chapter 3 which sets out sets out provisions dealing with salaries and bonuses.

The purpose of this Determination is:

• To implement the changes to the existing Career Transition Assistance Scheme and to update the benefits which provide assistance to members when they are ceasing continuous full-time service with the ADF. This is in response to the 2018 Defence Community Organisation review. This review found that, although members who have served for less than 12 years account for approximately 56 per cent of transitioning members, the Scheme offered them little support, specifically to those members between 18-24 years of age or leaving the ADF on a medical transition.

The review recommended that Defence adopt a needs based approach to the provision of transition support, inclusive of benefits to support transition to civilian employment, or meaningful engagement where employment does not support the members overarching wellbeing.

The Part has been contemporised to clearly set out what a member ceasing service in the ADF is eligible for. Information and procedures which are not legislative in nature have been removed from the Principal Determination.

• To amend the Principal Determination to incorporate changes to the Medical Officer Specialist Officer Career Structure established under section 58H of the Act by the Defence Force Remuneration Tribunal (DFRT). The changes are consequential to DFRT Determination No. 3 of 2021, Salaries – Medical Officer Specialist Officer Career Structure – amendment, which combined implement the DFRT decision on Matter 17 of 2020 – ADF Medical Officers.

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

Section 2 provides that sections 1 to 4 of this instrument and anything in this instrument not elsewhere covered by the table commences on the day after the instrument is registered. This provision provides that Schedules 1 and 2 commence on 15 April 2021 and Schedule 3 commences on a day to be fixed by Assistant Secretary People Policy and Employment Conditions by notifiable instrument. If the provisions do not commence within the period of 12 months beginning on the day after this instrument is registered, the provisions are repealed on the day after the end of that period.

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—Career transition amendments

Section 1 omits and substitutes Chapter 2 Part 2 of the Principal Determination which sets out the Career Transition Assistance Scheme which assists members prepare for civilian life when they cease service with the ADF. The new Part provides the following.

• Section 2.2.1 provides the purpose of the Part.
• Section 2.2.2 provides definitions for ‘employment’ and ‘meaningful engagement’.
• Section 2.2.3 specifies who the Part applies to, specifically a member of the Permanent Force who is going to be a member of the Reserves or who is leaving the ADF, or a member of the Reserves who is ceasing continuous full-time service.
• Section 2.2.4 specifies that the Part does not apply to a member who is leaving the Permanent Force to become a member of the Reserves on continuous full-time service. In this case, the member will be eligible for the benefits once they cease continuous full-time service.
• Section 2.2.5 provides that a member is eligible for up to $5,320 for career transition training to assist the member in gaining employment or meaningful unpaid work when they cease service. The member is eligible for this assistance for training that commences within 12 months after they have ceased service with the ADF. When a member has obtained employment or meaningful engagement assistance under this section is no longer payable. 
• Section 2.2.6 provides that a member is eligible for up to $1,000 for professional financial advice that is in relation to their transition to civilian life. This assistance is not payable for advice that is for routine tax or accountancy services.
• Section 2.2.7 provides that a member is eligible for travel costs within Australia when they have to travel to attend a career transition training activity or seminar. The member is to use Service accommodation, where suitable, in the location where the activity is held. If Service accommodation is not suitable for the member, the member is eligible for accommodation provided by the contracted service provider.
• Section 2.2.8 provides that a member is eligible for up to 23 absence days to attend various career transition activities. The 23 days is the total amount for the member’s career in the ADF, meaning that if the member re-joins the ADF the member is only eligible for any absence days that they did not use when they initially ceased service with the ADF, the 23 days does not recommence.
• Section 2.2.9 provides that a member must use the approved form to apply for career transition assistance under the Part.

Section 2 omits and substitutes paragraph 2.3.27.1.b of the Principal Determination which provides that a member is eligible for career transition assistance during an additional transition period. This paragraph has been amended consequential to the changes made to Chapter 2 Part 2 by section 1 of this Determination.

Schedule 2—ADF Medical Officers

Section 1 amends paragraph 3.2.18B.c of the Principal Determination which provides the definition for ‘specialist level’ for Chapter 3 Part 2 Division 2. The section is amended to change the reference ‘medical level’ to ‘military medical level’ as part of changes to the Medical Officer Specialist Officer Career Structure.

Section 2 amends section 3.2.42 of the Principal Determination which provides the rules for placement in the Medical Officer Specialist Officer Career Structure associated with increment advancement and promotion. The section is amended to change a number of references to ‘medical level’ to ‘military medical level’ as part of changes to the Medical Officer Specialist Officer Career Structure.

Section 3 omits subsection 3.2.42.1 of the Principal Determination which sets out how a medical officer may enter the Medical Officer Specialist Officer Career Structure. The subsection is omitted as the provisions to which it refers in the Defence Force Remuneration Tribunal Determination No. 2 of 2017, Salaries, have been removed.

Sections 4 and 8 omit subsections 3.2.42.2 and 3.2.42.4 of the Principal Determination which set out the conditions for additional increments and increment advancement, respectively. The subsections are omitted as their provisions are now better provided through the multi-pathway career structure in the Medical Officer Specialist Officer Career Structure recently established by the DFRT. As a consequence, the provisions contained in subsections 2 and 4 are now redundant.

Sections 5, 6 and 7 amend subsection 3.2.42.3A of the Principal Determination which provides the definition of increment anniversary for the purposes of the section. Specifically:

• Section 5 omits the exception as the provision to which it refers has been removed by section 4 of this Determination.
• Section 6 removes the examples that are non-legislative and administrative in nature.
• Section 7 adds a note at the end of the subsection. The note clarifies that the placement of a member from a medical level to a military medical level is not an increment advancement. The effect of this is that the increment advancement anniversary for a member does not change when they move from a medical level to a military medical level as part of the transition to the recently modified Medical Officer Specialist Officer Career Structure.

Section 9 amends subsection 3.2.42.5 of the Principal Determination which provides that on the promotion from one rank to another a medical officer retains the same medical level and increment they held before promotion. The subsection is amended to change a reference to ‘ML1, 2, 3 or 4’ to ‘MML1, 2A, 2B, 3, 3A or 4’ as part of changes to the naming conventions in the Medical Officer Specialist Officer Career Structure.

Section 10 amends subsection 3.2.42.5 of the Principal Determination which provides that on the promotion from one rank to another a medical officer retains the same medical level and increment they held before promotion. The example is non-legislative and administrative in nature and is removed.

Sections 11 omits and substitutes subsection 3.2.42.6 of the Principal Determination which provides that on advancement to a higher medical level the member’s new increment level is the lowest increment for that medical level. Specifically:

• Subsection 6 is amended to change 2 references to ‘medical level’ to ‘military medical level’, and to remove the see note and example which are non-legislative and administrative in nature.
• Subsection 6 has also been redrafted in line with contemporary drafting standards.
• Subsection 6A is inserted after the redrafted subsection 6. The new subsection 6A provides that, despite subsection 6, a member’s salary increment if they advance to MML3A, or from MML3A to MML4, is the increment that has the next highest salary than their salary immediately before they advanced to MML3A, or from MML3A to MML4.

Section 12 omits subsection 3.2.42.7 of the Principal Determination which provides that a medical officer in the transitional group outlined in subsection B.3.4.1 of DFRT Determination No. 2 of 2017, first becomes eligible for an increment advancement from the day they achieve the required qualifications. The transitional group to which the subsection refers no longer exist in the ADF. As a consequence, the subsection is removed.

Section 13 omits and substitutes section 3.2.47 of the Principal Determination which sets out how a medical officer, or a member acting as a medical officer, advances to a higher medical level. The section has been redrafted to change 2 references to ‘medical level’ to ‘military medical level’ as part of changes to the Medical Officer Specialist Officer Career Structure. The section has also been redrafted in line with contemporary drafting standards. Subsection 3.2.47.1 has been rewritten to clarify that the CDF may place a medical officer at a military medical level based on the member's qualifications, skills and experience. The remaining subsections have also been redrafted in line with contemporary drafting standards.

Section 14 amends the table in Annex 3.2.D of the Principal Determination. The Annex sets out the relevant pay grade, specialist employment category, level and conditions (if any) together with the commencement and expiry dates of the salary non-reduction period. The specialist officer categories of ‘Medical Officer ML2-5’, ‘Medical Officer ML2-6’ and ‘Medical Officer ML2-7’ are added to the table to provide a non-reduction period from 29 April 2021 to 28 April 2026. This ensures that these members have sufficient time to complete the required qualifications to advance to the new military medical levels that have equal or greater rates of salary.

Section 15 omits Chapter 3 Part 5 Division 11 of the Principal Determination which provides the financial support medical officers may receive when they participate in approved professional development activities. The Division is omitted as these benefits are rolled into the additional remuneration given to medical officers as part of changes to the Medical Officer Specialist Officer Career Structure, making the provision redundant.

Section 16 amends subsection 4.1.26.2 of the Principal Determination which provides a table for calculating higher duties allowance. The subsection is amended to change the reference to ‘medical level’ to ‘military medical level’ as part of changes to the Medical Officer Specialist Officer Career Structure.

Schedule 3—Star rank amendments

Section 1 adds section 3.2.42A to the Principal Determination. This section provides that if a member paid a rate of salary under Schedule B.15 of DFRT Determination No. 2 of 2017, Salaries, is promoted in rank, the member’s salary is the rate payable for the lowest increment for their new rank. This amendment is made to implement changes to the Medical Officer Specialist Officer Career Structure.

Section 2 omits and substitutes paragraph 3.2.42.3A.a of the Principal Determination which provides the date of a member’s increment anniversary if they are paid a salary under Schedule B.8 of DFRT Determination No. 2 of 2017, Salaries. The paragraph is amended to include members paid a salary under Schedule B.15 of DFRT Determination No. 2 of 2017, Salaries, as part of changes to the Medical Officer Specialist Officer Career Structure.

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

The Defence Community Organisation, Navy, Army, Air Force, Joint Health Command, Defence Finance Group, the Department of Veterans’ Affairs and the Department of Employment were consulted during the drafting of Schedule 1.

Navy, Army and Air Force were all consulted in the making of Schedules 2 and 3.

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

Authority:  Section 58B of the
Defence Act 1903

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

Schedule 1: In 2018, the Defence Community Organisation conducted a review of the existing Career Transition Assistance Scheme (CTAS). This review found that although members who have served for less than 12 years account for approximately 56 per cent of transitioning members (for the previous three financial years, FYs 16-18), the Scheme offered little support to members who transition voluntarily having completed between one day and 12 years of service. Furthermore the current tiered Scheme does not provide adequate support to those most ‘at risk’, for example members who are between 18-24 years of age and members who are leaving the ADF on a medical transition.

The review recommended that Defence adopt a needs based approach to the provision of transition support, inclusive of benefits to support transition to civilian employment, or meaningful engagement where employment does not support the members overarching wellbeing.

The purpose of this Schedule 1 is to implement the changes recommenced through the review and to update the benefits which provide assistance to members when they are ceasing continuous full-time service with the ADF. The Part has been contemporised to clearly set out what a member ceasing service in the ADF is eligible for. Information and procedures which are not legislative in nature have been removed from the Principal Determination.

Schedules 2 and 3: The purpose of these schedules is to amend the Principal Determination to incorporate changes to the Medical Officer Specialist Officer Career Structure established under section 58H of the Act by the Defence Force Remuneration Tribunal (DFRT). The changes are a part of the ADF’s submission to the DFRT for Matter 17 of 2020 – ADF Medical Officers. Army, Navy and Air Force have all experienced ongoing difficulties retaining medical officers in the numbers necessary to meet uniformed capability requirements. These changes to the Medical Officer Specialist Officer Career Structure will enable services to attract and retain suitable candidates by providing a better career development structure with more competitive pay rates.

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.

Schedule 1 of this Determination career assistance to members of the ADF when they are ceasing continuous full-time service with the ADF to ensure that they have the skills available to gain meaningful employment after they leave the ADF. The member will be eligible to receive financial assistance with career training and financial advice, they are also eligible for travel and accommodation to allow them to attend activities that are held in another location.

Schedules 2 and 3 of this Determination advances human rights by implementing improved benefits and conditions for specialist medical officers to ensure that their pay and conditions will remain competitive with the private sector.

Conclusion

This Determination is compatible with human rights because, to the extent that it engages with human rights, it advances their protection.

Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions