EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Flexible Service Determination) Determination 2018 (No. 40)

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.

Chapter 5 of the Principal Determination sets out provisions dealing with leave for members of the Australian Defence Force (ADF).

Chapter 7 of the Principal Determination sets out provisions dealing with housing and meals for members of the Australian Defence Force (ADF).

The purpose of this Determination is to make amendments to provisions within Defence Determination 2016/19, Conditions of service which relate to members of the Permanent Force who choose to undertake flexible service. Flexible service allows permanent members to contribute to ADF capability while undertaking a pattern of service other than full-time service. The authority for a member to undertake flexible service is given by a Flexible Service Determination pursuant to subsection 23(2) of the Defence Act.

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

Section 2 provides that this instrument commences on 29 November 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 – Amendment to Defence Determination 2016/19, Conditions of Service

Section 1 inserts section 4.4.23A. The new section provides that a member who is on a flexible service determination is not eligible for Scherger allowance for any continuous nonworking period of more than 28 days.

Sections 2, 3, 4 and 5 make amendments to provisions relating to maternity leave and long service leave. These amendments, in conjunction with the member's flexible service determination (FSD) simplify the administration of maternity leave and long service leave benefits. The following amendments have been made by this determination.

a)      The exception and cross reference under subsection 5.5.9.1 of the Principal Determination which provides that the CDF may not grant long service leave to a member who is on a FSD has been omitted. If a member on an FSD takes a period of long service leave their FSD will be temporarily varied.

b)      Subsection 5.6.14.1 of the Principal Determination provides the categories of member to which paid maternity leave does not apply. The subsection has been amended to remove reference to a member on an FSD. If a member who is on an FSD takes a period of paid maternity leave their FSD will be revoked.

c)       Subsection 5.6.14.2 of the Principal Determination, which provides paid maternity leave benefits for members who are not on an FSD has been amended to remove reference to an FSD. This is a consequence of subsection 5.6.14.2A being omitted.

d)      Subsection 5.6.14.2A which provides paid maternity leave benefits for members who are on an FSD has been omitted as it no longer applies. If a member who is on an FSD takes a period of paid maternity leave their FSD will be revoked.

Sections 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 amend paragraphs 7.4.27A.3.b, 7.4.27B.2.b, 7.4.27B.3, 7.6.55A.3.b, 7.6.55B.2.b, 7.6.55B.3, 7.7.14A.3.b, 7.7.14B.2.b, 7.7.14B.3, 7.8.18A.3.b, 7.8.18B.2.b and 7.8.18B.3 respectively of the Principal Determination. These sections provide the contributions a member on an FSD is required to make towards housing benefits. The formula in each section has been amended to rectify an error identified. This will ensure that the desired policy outcome is achieved and that no member will be disadvantaged.

Sections 19 and 20 amend section 7.9.10 of the Principal Determination, which provides when a member is eligible for food allowance, and the rate of the allowance. Section 19 amends subsection 7.9.10.2 to include an exception. The exception excludes members on an FSD from receiving food allowance on days that do not form part of their pattern of service under their FSD. Section 20 inserts a new subsection which provides that a member on an FSD is to receive food allowance at the rate of $19.73 for each day in the member's pattern of service, up to a maximum of $197.29.

Consultation

Before this Determination was made, consultation was undertaken with the Dept. of Defence Co Design Working Group which consists of tri-service representatives. The rule-maker was satisfied that further external consultation was not required.

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 (Flexible Service Determination) Determination 2018 (No. 40)

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

This Determination makes technical amendments to Defence Determination 2016/19, Conditions of service.

The purpose of this Determination is to make amendments to provisions within Defence Determination 2016/19, Conditions of service which relate to members of the Permanent Force who choose to undertake flexible service. Flexible service allows permanent members to contribute to ADF capability while undertaking a pattern of service other than full-time service. The authority for a member to undertake flexible service is given by a Flexible Service Determination pursuant to subsection 23(2) of the Defence Act 1903.

Human rights implications

Right to the enjoyment of just and favourable conditions of work

The protection of a person's right to just and favourable working conditions engages Article 7 of the International Covenant on Economic, Social and Cultural Rights. Article 7 recognises the right to just and favourable conditions of work including remuneration which provide for fair wages, equal pay for equal work and a decent living for the person and their families. The administration of pay and conditions set out under this Determination are consistent with these rights.

Legitimate objective – Maternity leave and long service leave: Members on a flexible service determination will have their flexible service arrangement varied or revoked while on a period of maternity leave or long service leave. This ensures a member is able to receive benefits at the full rate they would have expected to receive had they not been on a flexible service determination.

Legitimate objective – pro-rata payment of food allowance: Members on flexible service will have some allowances pro-rated. This includes food allowance. Pro-rating the payment of food allowance in proportion to a member’s pattern of service is reasonable, proportionate and fair.

Conclusion

This Determination is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions