Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 2)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 2)

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 implement changes ADF leave benefits following a comprehensive review ADF leave conditions. A new ADF leave framework is being introduced that separates leave types into the following categories: accrued leave, personal leave, short absence, and medical absence. The new framework supports commanders and managers to actively manage leave benefits across their workforces and promote the consistent application of leave.

The key changes under the new ADF leave framework include:

• Increasing the annual accrual of basic recreation leave from 20 to 25 days while also reducing the different types of recreation leave.
• Allowing recreation leave to be taken as a half day.
• Introducing personal leave to replace compassionate leave. Personal leave may be granted for the death or serious illness of a close relative, where a pregnancy ends other than by birth, or where a member or a person in their household has been subject to family and domestic violence. Personal leave can also be granted to attend to urgent personal matters where no other paid leave is appropriate.
• Providing a discretion to payout long service leave during service for member with a terminal illness.
• Contemporising the basis on which short absences from duty can be granted, including converting a number of types of paid leave to short absences, including:

• Examination leave becomes short absence – examination attendance.
• Travelling leave becomes short absence – travel.
• Pre-deployment leave becomes short absence – pre-deployment.
• Leave to attend civil court proceedings becomes short absence – civil court proceedings.

New types of short absences enable members to take time to rest and recover and allow a member to recover from long or arduous duty on an individual basis or to support unit effectiveness and the health and well-being of unit personnel, or to attend to urgent personal matters.  

These changes are a part of the ADF employment offer modernisation program, which will deliver further changes to ADF leave benefits over the coming year.

Operational details

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

Incorporation by reference

The Determination makes references to sections of the Defence Force Discipline Act 1982 and Defence Determination 2016/19, Conditions of service and the. These instruments are incorporated into this 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.

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, consultation was undertaken with Navy, Army and Air Force, People Systems & Payroll Services branch,

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

Annex A

Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 2)

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—ADF leave reform

Item 1 amends section 1.3.1 of the Principal Determination which provides definitions that apply across the Principal Determination. Specifically, the item inserts definitions of ‘dual service couple’, ‘family and domestic violence’ and ‘Service tribunal’. The definition of ‘family and domestic violence’ mirrors, to the extent possible, the same definition as provided in the Fair Work Act 2009.

Items 2, 3 and 4 amend section 3.2.14 of the Principal Determination which deems members of the Reserves to be required for and to attend for duty in specific circumstances. Specifically, the items do the following:

• Item 2 makes a technical amendment to specify that the member is taken to attend the duty.
• Item 3 expands the reasons in which the member may be taken to be required to attend and to have attended that duty to include a period of rest or recovery immediately after completing an arduous or prolonged period of duty. This enables members to receive salary for those days if they are not being paid by, or performing duty for, another employer.
• Item 4 makes a technical amendment.

Item 5 amends the heading of Chapter 5 of the Principal Determination to include ‘and absences’.

Item 6 amends the definition of ‘senior officer who transitioned’ in section 5.1.1A of the Principal Determination. The amendment broadens the application of the definition to include all senior officers who hold a specified rank and are transferred to a pool position.

Item 7 repeals section 5.1.2 which provides an overview of Chapter 5 of the Principal Determination. This information is administrative in nature and does not affect the operation of the rules in Chapter 5.

Items 8 and 9 amend section 5.4.8 of the Principal Determination which provide rules relating to the accrual of basic recreation leave. Item 8 increases the number of days of basic recreation leave credits in a year to 25. This is as a consequence of the repeal of extra recreation leave by item 10. Item 9 updates the formula for calculating the fortnightly number of days of basic recreation leave credits a member accrues.

Item 10 repeals Division 4 of Part 4 to Chapter 5 of the Principal Determination which provides the rules relating to extra recreation leave. Extra recreation leave is being repealed in lieu of members being provided an extra 5 days of basic recreation leave.

Item 11 repeals and substitutes section 5.4.31 of the Principal Determination which imposes conditions on granting recreation leave. The section is being remade specifying the different ways in which recreation leave may be taken, including for a half day. Specific rules apply to members who are subject to a flexible service determination made under the Defence Act.

Item 12 repeals and substitutes section 5.4.32 of the Principal Determination which provides guidance to commanding officers about leave management. This information is administrative in nature and is not required to be legislated. The section is being remade providing rules about taking recreation leave, specifically the number of leave credits a member must have before they can take a period of recreation leave.  Additionally, the section requires decision makers to consider the operational impact the leave may have on the member’s unit.

Item 13 repeals section 5.4.33 of the Principal Determination which provides rules about granting recreation leave.  These rules have been incorporated into section 5.4.31 and 5.4.32, as remade by items 11 and 12 of this Determination.

Item 14 repeals and substitutes subsection 5.4.33A.1 of the Principal Determination which provides how a member’s leave credits are reduced when the member takes leave. The section is amended to provide for leave taken for half of a day. The section is also amended to enable recreation leave credits to be reduced when a member who has excess leave credits has been directed to take leave.

Item 15 inserts a new subsection in section 5.4.33A of the Principal Determination and provides a definition of excess leave credits.

Item 16 repeals and substitutes the heading of Division 5 of Part 5 to Chapter 5 of the Principal Determination. The heading is amended to better reflect the content of the Division.

Item 17 repeals section 5.5.24 of the Principal Determination which specifies who Division 5 of Part 5 to Chapter 5 applies to. The rules have been incorporated into section 5.5.25A, as made by item 18 of this Determination.

Item 18 repeals and substitutes section 5.5.25 of the Principal Determination which specifies who Division 5 of Part 5 to Chapter 5 does not apply to. The section is remade to exclude enlisted members who become officers, and vice versa from being eligible for a pay out of long service leave. The rule does not need to apply to members who change Service, as this is achieved by way of a transfer between arms of the Defence Force under the Defence Regulation 2016.

Additionally, item 18 inserts section 5.5.25A into the Principal Determination which specifies when a member, including a former member, is eligible to receive a payment for their long service credits. This includes new rules relating to members who have been diagnosed with a terminal illness.

Item 19 repeals and substitutes the heading of section 5.5.26 of the Principal Determination to better reflect the content of the section.

Item 20 amends subsection 5.5.26.6 of the Principal Determination which provides a formula for the calculation of a payout of long service leave credits for a senior officer. The item amends the description of ‘A’ to better reflect the rule.

Item 21 repeals section 5.5.28 of the Principal Determination which provides for the pay out of long service leave for members who have not completed 10 years’ service before their services in the permanent forces is ended for a specific reason. The eligibility for the payment has been incorporated into section 5.5.25A, as a consequence of amendments made by item 18 of this Determination.

Item 22 repeals and substitutes section 5.8.1 of the Principal Determination which specifies the purpose of war service leave. The section is updated to better reflect the purpose of the benefit.

Item 23 repeals and substitutes Division 2 of Part 9 to Chapter 5 of the Principal Determination which provides the rules relating to compassionate leave. The Division is remade as ‘personal leave’, which incorporates leave for specific compassionate purposes. Specifically, the Division provides the following.

• Section 5.9.8 specifies the purpose of personal leave.
• Section 5.9.9 establishes the eligibility for personal leave, including for compassionate reasons relating to the poor health or death of a close relative, miscarriage or a stillbirth that it not covered by maternity leave and family and domestic violence, and to attend to urgent personal matters or other circumstances that are in the interests of the ADF.
• Section 5.9.10 provides limitations of personal leave, including only being able to take the leave once in relation to the same factual circumstances unless it is reasonable to do so.

Items 24 and 25 amend section 5.9.12 of the Principal Determination which provides the rules for carer’s leave. Item 24 inserts a note at the end of paragraph 5.9.12.3.a, which advises the reader of the interaction with section 5.9.12B, which is inserted as a consequence of item 26 of the Determination. Item 25 repeals subsection 5.9.12.4, also as a consequence of item 26 of the Determination.

Item 26 inserts section 5.9.12A and 5.9.12B into the Principal Determination.

• Section 5.9.12A provides for additional carer’s leave. Additional carer’s leave is available to members after they have used their carer’s leave benefit provided under section 5.9.12 of the Principal Determination. Additional carer’s leave reflects the rules provided in subsection 5.9.12.4 of the Principal Determination.
• Section 5.9.12B provides for additional carer’s leave for members who are a part of a dual serving couple, in addition to the benefit under section 56.9.12A. This section provides for an additional 10 days of carer’s leave if the member’s partner is unable to provide the required care as a consequence of not being able to return to the member’s location.

Item 27 repeals Division 5 of Part 9 to Chapter 5 of the Principal Determination which provides rules relating to examination leave. This leave type is remade by item 39 of this Determination as a type of short absence.

Item 28 repeals Division 6 of Part 9 to Chapter 5 of the Principal Determination which provides rules relating to travelling leave This leave type is remade by item 39 of this Determination as a type of short absence.

Item 29 repeals Division 7 of Part 9 to Chapter 5 of the Principal Determination which provides rules relating to pre-deployment leave. This leave type is remade by item 39 of this Determination as a type of short absence.

Item 30 repeals Division 8 of Part 9 to Chapter 5 of the Principal Determination which provides rules relating to leave to attend civilian court proceedings. This leave type is remade by item 39 of this Determination as a type of short absence.

Item 31 inserts section 5.10.5A into the Principal Determination as a consequence of the repeal of Division 8 of Part 9 to Chapter 5 by item 30 of the Determination. The new section provides a member with leave without pay to attend a civilian court or tribunal proceeding when it is not appropriate for a short absence to be approved.

Item 32 amends the heading Division 1 of Part 11 to Chapter 5 of the Principal Determination to better reflect the purpose of the short absence under Division 1, as amended by item 33 of this Determination.

Item 33 amends section 5.11.3 of the Principal Determination which specifies the purpose of a short absence under Division 1 of Part 11 to Chapter 5. The item removes the reference to urgent personal matters, which are to be provided under personal leave, as a consequence of changes made by item 23 of this Determination.

Item 34 repeals section 5.11.4 of the Principal Determination which specifies the decision makers for a short absence under Division 1 of Part 11 to Chapter 5. ‘Decision maker’ is replaced by the CDF, who will subsequently authorise persons holding specified positions to make decisions on his behalf.

Items 35 and 36 amend section 5.11.5 of the Principal Determination which provides rules relating to the approval of a short absence under Division 1 of Part 11 to Chapter 5. Item 35 repeals and substitutes subsection 5.11.5.1 of the Principal Determination to remove the phrase ‘decision maker’ and to limit a grant of a short absence under this Division to 5 days. Item 36 omits subsection 5.11.5.2 of the Principal Determination as it is no longer consistent with the purpose of the short absence.

Item 37 repeals subsection 5.11.7.3 and 5.11.7.4 of the Principal Determination which provide administrative rules that apply to a grant of short absence. As these rules are administrative in effect, they do not need to be legislated.

Item 38 inserts a new division after Division 2 of Part 11 to Chapter 5 of the Principal Determination. The new Division provides for a short absence for when members are not required to attend for duty, such as outside their unit’s normal working hours. Members may be required to attend for duty outside of their unit’s normal working hours, such as for the purpose of participating in an exercise or during a high tempo period.

Item 39 inserts multiple divisions after Division 4 of Part 11 to Chapter 5 of the Principal Determination as a consequence of changes made by items 27, 28, 29 and 30 of this Determination. Item 39 also creates a new type of short absence. Specifically, item 39 does the following.

• Establishes Division 5 of Part 11 to Chapter 5 of the Principal Determination, which provides a short absence to a member required to attend an exam, including the reasonable travel period. The short absence replaces examination leave.
• Establishes Division 6 of Part 11 to Chapter 5 of the Principal Determination, which provides a short absence to a member required to travel more than 12 hours while using a specified travel benefit. The short absence replaces travelling leave and is intended to enable the member to maximise their leave.
• Establishes Division 7 of Part 11 to Chapter 5 of the Principal Determination, which provides a short absence to a member before they commence a deployment. The short absence replaces pre-deployment leave.
• Establishes Division 8 of Part 11 to Chapter 5 of the Principal Determination, which provides a short absence to a member required to attend civilian court or tribunal proceeding. The short absence in addition to amendments made by item 31, replaces leave to attend civilian court proceedings.
• Establishes command directed short absence. Command directed short absence is to be used for maintaining unit effectiveness, including the health and welfare of unit members, and therefore may be used for groups of members within a unit rather than being individually focused.

Schedule 2—Consequential amendments

Items 1, 4, 5, 6, 8, 11, 12, 17, 18, 19, 21, 24, 25, 26 and 27 make consequential amendments across the Principal Determination to update the name of leave types that have been changed by Schedule 1 of this Determination.

Items 2 and 3 amend section 3.2.14 of the Principal Determination which deems members of the Reserves to be required for and to attend for duty in specific circumstances. Item 3 repeals subsection 3.2.14.3 of the Principal Determination as the rule repeats a rule in DFRT determination No. 2 of 2017, Salaries, which is replaced by a note by item 43 of Schedule 1 of this Determination.

The following items repeal determined text relating to the availability of travelling leave to members in association with a particular benefit.  The text is replaced by a note.

• Items 6 and 7 in relation to duty in Antarctica under Division 6 of Part 4 to Chapter 4 of the Principal Determination.
• Item 15 and 16 in relation to house hunting trips under Division 4 of Part 1 to Chapter 7 of the Principal Determination.
• Items 20, 21, 22, and 23 in relation to compassionate travel under Division 8 of Part 3 to Chapter 9 of the Principal Determination.
• Items 30 and 31 in relation to relief out-of-country travel fare assistance under Division 4 of Part 7 to Chapter 17 of the Principal Determination.

Items 9 and 10 amend section 5.4.6 of the Principal Determination which provides definitions that apply across Part 4 of Chapter 5 of the Principal Determination. The items repeal and substitute the definitions of ‘field service’ and ‘flight duty’ respectively to define them in the determination rather than by way of cross reference to DFRT Determination No.2 of 2017, Salaries.

Item 13 amends section 5.4.42 of the Principal Determination which provides the definitions that apply to Part 4 of Chapter 5. The amended section adds after the phrase “extra recreation leave” information that limits extra recreation leave from being included if the leave were granted after 1 August 2023. Despite being repealed by Schedule 1 of this Determination, it may still be granted in limited circumstances until 1 August 2023 under clause 3 of Schedule 3 of this Determination.

Item 14 amends subsection 5.8.6.2 of the Principal Determination which provides rules relating to the accrual of specified types of recreation leave while on warlike service. The item repeals paragraph 5.8.6.2.d of the Principal Determination, as it refers to extra recreation leave, which is repealed by schedule 1 of this Determination.

Item 28 amends section 14.4.15 of the Principal Determination which provides the benefits provided during a rest period.  The item repeals note 2 and it refers to an obsolete provision.

Item 29 repeals section 17.7.20 of the Principal Determination which provides information about the interaction between additional recreation leave, extra recreation leave and travelling leave. The section is repealed as it provides information that is obsolete as a consequence of changes made by schedule 1 of this Determination, or administrative in nature and does not need to be determined.

Schedule 3—Transitional and savings provisions

Clause 1 defines the phrase ‘Defence Determination’ for the purpose of this Schedule to mean Defence Determination 2016/19, Conditions of service, as in force immediately before the commencement of this Determination.

Clause 2 provides a savings provision that applies to members who are on or have been approved to take a type of leave provided under the Defence Determination that ceases to exist after the commencement of this Determination. The leave type, and any approval of leave is retained to enable the member to realise the benefit of that leave.

Clause 3 provides a savings provision for extra recreation leave that will no longer exist following the commencement of this Determination. The clause enables decision makers to approve a grant of extra recreation leave in relation to service from 1 July 2022 to 30 June 2023. Decision makers have until 31 August 2023 to grant the recreation leave, which is typically done at the end of each financial year.

Clause 4 applies to extra recreation leave and provides clarity that any extra recreation leave credits become recreation leave credits.

Annex B

Defence Determination, Conditions of service Amendment (Employment offer modernisation) Determination 2023 (No. 2)

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 implement changes ADF leave benefits following a comprehensive review ADF leave conditions. A new ADF Leave framework is being introduced that separates leave types into the following categories: accrued leave, personal leave, short absence, and medical absence. The new framework supports commanders and managers to actively manage leave benefits across their workforces and promote the consistent application of leave.

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 contemporary leave framework to ADF members as a part of their conditions 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.