EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Household help and snow clearing) Determination 2018 (No. 39)

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.

Chapter 15 of the Principal Determination sets out provisions dealing with living and working on long-term posting overseas for members of the Australian Defence Force (ADF).

This Determination has the following purposes.

• To provide reimbursement of snow clearing expenses to a member posted overseas after 1 July 2017.
• To restructure overseas household help provisions to provide better clarity to the member of their benefits.
• To remove notes and examples from overseas household help provisions that have no legal effect.

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

Section 2 provides that this instrument commences on 1 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 amends section 15.4.4 of the Principal Determination, which provides the contents of the Part. The section is amended to reflect the change to the title of Chapter 15 Part 4 Division 6, consequential upon Schedule 1 section 2 of this Determination.

Section 2 omits and substitutes Chapter 15 Part 4 Division 6 of the Principal Determination, which provides financial assistance to members for costs incurred at their home as a result of their posting overseas. The following changes are made to Chapter 15 Part 4 Division 6 of the Principal Determination.

• The Division is renamed to better reflect the two provisions provided by the Division; Household help and snow clearing. Also, "member posted before 1 July 2017" is removed from the title as the household help provisions are now only restricted to these members. The snow clearing provisions apply to all members posted overseas.
• Section 15.4.26A is omitted, which provided which members the Division applies to. In 2017 a Whole-of-Government review into overseas conditions of service provided that household help was in excess of community expectations. Amending Defence Determination 2017/18, Overseas conditions of service (Budget measure 2017-18 – Overseas allowances) restricted provisions in the Division to members posted before 1 July 2017. In doing so a benefit providing reimbursement of costs for snow clearing was unintentionally removed for members posted after 1 July 2017. This Determination reinstates the snow clearing benefit for all members on long-term posting overseas and provides that household help provisions under section 15.4.27 of the Principal Determination are the only benefits under the Division that are restricted to members posted before 1 July 2017.
• Paragraph 15.4.27.2.a is omitted, which provided that the Chief of the Defence Force may reimburse a member the cost of household help if satisfied the help is required as a direct result of the member's official duties. The intent of the provision is not only to reimburse a member for household costs directly caused by a member's official duty but also for costs such as employing a person for yard or property maintenance.
• Notes, see notes and examples are omitted as they have no legal effect. They are to be included as guidance on the Defence website at http://www.defence.gov.au/PayAndConditions/ADF/Chapter-15/Part-4/Div-6.asp from the date of effect of this Determination.

Schedule 2 – Defence Determination 2016/19, Conditions of Service – snow clearing transitional provision

Section 1 provides a transitional provision for a member who was on a long-term posting overseas after 1 July 2017 and would have been approved reimbursement for snow clearing under section 15.4.28 of the Principal Determination had the benefit not been unintentionally removed for that member by Defence Determination 2017/18, Overseas conditions of service (Budget measure 2017-18 – Overseas allowances). The transitional provides the member is eligible to be reimbursed an amount for snow clearing they would have been approved less any amount they received for the same benefit between 1 July 2017 and the commencement of this Determination.

Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system. A person may make a complaint to the Defence Force Ombudsman.

Consultation

The Directorate of Attaché and Overseas Management requested that snow clearing provisions be reinstated for all members on long-term overseas posting. The rulemaker 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 (Household help and snow clearing) Determination 2018 (No. 39)

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 has the following purposes.

• To provide reimbursement of snow clearing expenses to a member posted overseas after 1 July 2017.
• To restructure overseas household help provisions to provide better clarity to the member of their benefits.
• To remove notes and examples from overseas household help provisions that have no legal effect.

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.

Defence often requires its members to relocate to new locations around the world. It recognises the importance of providing assistance when a member is disadvantaged financially due to the overseas location or as a direct result of their official duties. This Determination reinstates a snow clearing benefit for all members on long-term overseas posting, to ensure that they receive just and favourable remuneration in accordance with Article 7.

Conclusion

The Determination does not engage any of the applicable rights or freedoms.

Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions