Defence Determination, Conditions of Service Amendment (Long service leave) Determination 2019 (No. 14)

Administered by Department of Defence

Legislation au F2019L00680 Not in force Legislative Instrument

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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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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

 

 

 

Overview

The Defence Determination, Conditions of Service Amendment (Long service leave) Determination 2019 (No. 14) was enacted to address the need for clarity and flexibility in the conditions governing long service leave for members of the Australian Defence Force (ADF) who are ceasing continuous full-time service and wish to transfer their leave credits to a new Commonwealth entity. This determination amends Defence Determination 2016/19, Conditions of service, made under section 58B of the Defence Act 1903 and in accordance with subsection 33(3) of the Acts Interpretation Act 1901. The policy objective is to streamline administrative processes and enhance the flexibility of leave benefits, thereby improving the working conditions for ADF members. The amendments include removing the requirement to apply for leave at least one month in advance, setting a minimum period for leave grants, and providing clearer conditions for the transfer of leave credits. These changes aim to reduce administrative burdens and offer more adaptable leave options, ultimately ensuring ADF members receive just and favourable conditions of work in line with international human rights standards.

Scope and Application

The Defence Determination, Conditions of Service Amendment (Long Service Leave) Determination 2019 (No. 14) amends Defence Determination 2016/19, Conditions of Service, made under section 58B of the Defence Act 1903. This Determination applies to members of the Australian Defence Force who are ceasing continuous full-time service and elect to transfer all or part of their long service leave credits to a new Commonwealth entity. It aims to streamline the process by which members apply for and transfer long service leave, making the leave benefit more flexible and reducing administrative burdens. The amendments include clarifying the conditions for applying for leave, reducing the required notice period, setting minimum periods for long service leave, and providing specific criteria for transferring leave credits. This Determination is subject to the interpretation principles in the Acts Interpretation Act 1901 and is compatible with human rights, ensuring that members receive just and favourable conditions of work as guaranteed by the International Covenant on Economic, Social and Cultural Rights.

Key Provisions

The Defence Determination, Conditions of Service Amendment (Long service leave) Determination 2019 (No. 14) amends the Defence Determination 2016/19, Conditions of service (Principal Determination), made under section 58B of the Defence Act 1903 (section 3). It modifies provisions related to long service leave for members of the Australian Defence Force (ADF) who are leaving continuous full-time service and wish to transfer their leave credits to a new Commonwealth entity. The Determination is designed to clarify and streamline the process for members applying for and transferring long service leave credits (section 4). The main sections amended include section 5.5.7, which now provides clearer conditions for applying for long service leave and removes the prior requirement to apply at least one month before the leave period (Schedule 1, Section 1). Section 5.5.9.2 has been updated to establish the minimum period of long service leave that can be granted as seven days at full pay or 14 days at half pay (Schedule 1, Section 2). Additionally, section 5.5.9.3 clarifies that the conditions for the grant of long service leave do not apply if the Chief of the Defence Force is satisfied that there are compassionate reasons (Schedule 1, Section 3). Finally, section 5.5.29 has been revised to better outline the conditions for members transferring their long service leave credits to a new Commonwealth entity, with notes now provided on the Defence Pay and Conditions website (Schedule 1, Section 4). The obligations imposed on the parties by this Determination include ensuring that the amended provisions are adhered to in the application and transfer of long service leave credits. Members must follow the clarified conditions and requirements as outlined in the amended sections, particularly when applying for leave or transferring credits to a new entity (section 4). The Defence Force Ombudsman is available for any complaints regarding adverse decisions, and the ADF redress of grievance system allows for inquiries into such decisions (section 4). Failure to comply with the provisions of this Determination could result in adverse consequences for the member, such as the denial of leave or the improper transfer of leave credits. These decisions may be subject to inquiry under the ADF redress of grievance system, and complaints can be made to the Defence Force Ombudsman. However, the Determination does not explicitly state specific offences, penalties, or consequences for non-compliance, so the exact repercussions would depend on the outcomes of any inquiries or complaints made under the ADF grievance system (section 4).

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