EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Long service leave) Determination 2019 (No. 14)
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 5 of the Principal Determination sets out provisions dealing with leave for members of the Australian Defence Force (ADF).
The purpose of this Determination is to amend the provisions for long service leave for a member who is ceasing continuous full-time service and elects to transfer all or part of their long service leave credits to a new Commonwealth entity.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 11 July 2019.
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 omits and substitutes section 5.5.7 of the Principal Determination. The section sets out the conditions for a member applying for leave and has been amended to provide clarity for the reader. The amendment also removes a previous requirement to apply for long service leave at least one month before the start of the leave period applied for. This amendment has a positive effect for a member by reducing administrative red tape.
Section 2 omits and substitutes subsection 5.5.9.2 of the Principal Determination. The amendment provides that the minimum period of long service leave that may be granted is seven days at full pay or 14 days at half pay. This amendment also has a positive effect for the member by making the leave benefit more flexible.
Section 3 omits and substitutes subsection 5.5.9.3 of the Principal Determination. The amendment provides that subsection 2 of this Determination, which sets out the conditions for the grant of long service leave for full pay and half pay, does not apply if CDF is satisfied that there are compassionate reasons.
Section 4 omits and substitutes section 5.5.29 of the Principal Determination. The section sets out the conditions for a member who is ceasing continuous full-time service and elects to transfer all or part of their long service leave credits to a new Commonwealth entity. The section has also been amended to provide clarity for the reader. The section notes have been removed and inserted as guidance into the Defence Pay and Conditions website which can be found at http://www.defence.gov.au/PayAndConditions/ADF/Chapter-5/Part-5/Div-5.asp.
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
Before this Determination was made, internal consultation was undertaken with the Pay and Administration Branch in the Department of Defence. 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 (Long service leave) Determination 2019 (No. 14)
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 amend the provisions for long service leave for a member who is ceasing continuous full-time service and elects to transfer all or part of their long service leave credits to a new Commonwealth entity.
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.
This Determination provides for a member who is ceasing continuous full-time service and elects to transfer all or part of their long service leave credits to a new Commonwealth entity. This ensures that they receive just and favourable remuneration in accordance with Article 7.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions