Defence Determination, Conditions of service Amendment (Long service leave) Determination 2019 (No. 23)
This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 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.
This Determination amends Chapter 5 of the Principal Determination for members of the Australian Defence Force (ADF). Chapter 5 of the Principal Determination sets out provisions dealing with leave for members of the ADF.
The purpose of this Determination is to increase the flexibility for members of the ADF to take long service leave. Changes are also being made to contemporise the drafting style and to improve the readability of the Principal Determination.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 5 September 2019.
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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—Long service leave amendments
Sections 1 and 2 amends section 5.5.1 of the Principal Determination, which provides an overview to Chapter 5 Part 5 of the Principal Determination. Sections 1 to 3 omit the see notes in subsections 5.5.1.4 and 5.5.1.5
Sections 3, 4 and 6 amends section 5.5.6 of the Principal Determination, which sets out administrative concepts used in Chapter 5 Part 5. The amendments omit subsections 1, 5 and 7, which contain rules that are contained elsewhere in the Part.
Section 5 amends subsection 5.5.6.6 of the Principal Determination, which provides an overview to Chapter 5 Part 5 of the Principal Determination, by omitting the see note.
Section 7 omits section 5.5.7 of the Principal Determination, which describes how a member is to apply for long service leave. The section is omitted because it contains mostly administrative processes that do not require a legislative underpinning. Those steps that must be followed for the purpose of making a valid application for long service leave have been remade in the amended section 5.5.9.
Section 8 omits section 5.5.9 of the Principal Determination, which describes how long service leave is granted. A new section 5.5.9 is inserted that specifies the eligibility criteria a member must satisfy in order to take long service leave. The criteria include: the form a member must use to apply for leave; when the member must apply; the minimum period of long service leave that may be taken; and the effect of previous periods of long service leave. The new section also includes a discretionary power for the CDF to decide that the limitation on when a member may apply for leave and time between two periods of long service leave do not apply.
Section 9 omits section 5.5.10 of the Principal Determination, which limits the ability for a member to take long service leave within 14 days after a previous period of long service leave. This rule has been remade in section 5 of this Determination. A new section 5.5.10 is inserted that details the effect of taking long service leave on long service leave credits.
Section 10 omits section 5.5.11 of the Principal Determination, which makes rules for members of the ADF who are on part-time leave without pay who seek to take long service leave. As part-time leave without pay no longer exists for members of the ADF, having been replaced by flexible service determinations under section 23 of the Act, the rules have no further application.
Criteria are provided for the exercise of discretion under the Principal Determination, as amended by this Determination. Adverse decisions 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
Navy, Army and Air Force have been consulted in the development of the Determination.
The rule maker was satisfied that further external consultation was not required.
Authority: Section 58B of the
Defence Act 1903
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
The purpose of this Determination is to increase the flexibility for members of the Australian Defence Force (ADF) to take long service leave, a condition of service. Changes are also being made to contemporise the drafting style and to improve the readability of the Determination.
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.
Legitimate objective: This Determination increase the flexibility of the long service leave provisions provided in the Principal Determination making it easier for members to access leave using long service leave credits. The amendment to the Principal Determination provides more favourable conditions of work to members of the ADF.
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