EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Long-term overseas posting conditions) Determination 2019 (No. 12)

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.

This Determination has the following three purposes:

• To amend provisions relating to the cost of living adjustment provided for members who are on a long-term posting overseas.
• To amend provisions relating to the cost of posting allowance provided for members who are on a long-term posting overseas.
• To amend provisions relating to travel when a member's overseas posting has been extended or when they have been posted to a second overseas location.

The cost of living adjustment is an allowance provided to members who are posted to a location where goods and services are more expensive than in Australia. The cost of posting allowance helps to compensate members for the financial and non-financial disadvantage suffered due to overseas postings.

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

Section 2 provides that this instrument commences on 16 May 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 – Cost of living adjustment and cost of posting allowance – Amendment to Defence Determination 2016/19, Conditions of Service

Section 1 inserts section 1.3.69A into the Principal Determination. The new section provides a definition of Salary which is used throughout the Principal Determination, unless a contrary intention appears.

Section 2 omits section 3.5.89 from the Principal Determination. The section provided a definition of the term salary, this is now provided for under section 1.3.69A, which is inserted by section 1 of this determination.

Section 3 omits and substitutes subsection 15.2A.12.2 of the Principal Determination, which provides how the cost of living adjustment is calculated. Step 1 of the table has been amended to provide that a member's fortnightly salary for the purposes of their cost of living adjustment is to include any higher duties allowance that is payable at the time of calculation, and any salary non-reduction supplement the member is in receipt of under section 3.2.56 of the Principal Determination.

Section 4 omits and substitutes section 15.2A.15 of the Principal Determination, which provides how the cost of posting allowance is calculated. The section has been amended to provide clarity around how the allowance is calculated, and to ensure that any salary non-reduction supplement the member is in receipt of under section 3.2.56 of the Principal Determination is taken into consideration when doing the calculation.

Schedule 2 – Travel on extension of posting or second long-term overseas posting – Amendment to Defence Determination 2016/19, Conditions of Service

Sections 1 and 2 amend subsection 15.2.34 of the Principal Determination, which provides that overseas living allowances are not to be paid for leave taken in Australia. Section 1 amends an exception which provides that payment of overseas living allowances may be paid for leave taken in Australia when the member is between long-term overseas postings. The exception is being amended to reflect a change to a reference to a provision that has been amended by section 3 of this Determination. Section 2 omits a see note which is not legislative in nature.

Section 3 omits and substitutes Chapter 5 Part 3 Division 7 of the Principal Determination, which provides travel provisions for a member and their dependants when the member's overseas posting has been extended or they are posted to a second overseas location. The Division is made up of the following sections.

Section 15.3.37 provides the purpose of the Division. This section has been amended to clarify the purpose of the benefit, ensuring that it is available to a member’s dependants and the circumstances in which it may be available.

Section 15.3.38 provides travel when a member's long-term posting overseas has been extended. The following amendments have been made to the section.

• The section has been amended to clarify that a member's dependants are eligible for travel under this provision and that the member's dependants do not have to travel with the member for this benefit to apply.
• The travel period has been amended to allow for the return travel to occur within three months before the last day that the long-term posting was expected to end and three months after the after the last day that the long-term posting was expected to end.
• A discretionary provision which allows a decision maker to approve the travel to be taken outside of the travel period was previously an exception and is now a rule under subsection 3.  

Section 15.3.39 provides travel when a member on long-term overseas posting is posted to a new long-term posting overseas. The following amendments have been made to the section.

• The section has been amended to clarify that a member's dependants are eligible for travel under this provision and that the member's dependants do not have to travel with the member for this benefit to apply.

• The travel period for the member's dependants has been clarified to set out that travel can occur at the same time as the member or within three months before the last day that the long-term posting ends and three months after the after second long-term posting starts.
• A discretionary provision which allows a decision maker to approve travel outside of the travel period has been included.

Section 15.3.40 provides travel costs for dependants when a member unaccompanied has their long-term posting overseas posting extended. This section has been amended to extend the provision to dependants when the member is posted to a new overseas location and to clarify what travel costs may be payable when the member's dependants join the member in the posting location.

Schedule 3 – Transitional provision

Section 1 provides a transitional provision for a member who was eligible for the cost of living adjustment and the cost of posting allowance under Chapter 15 Part 2A and who were on a salary non-reduction provision between 1 July 2017 and the commencement of this Determination. The member is eligible for the payment of an amount of cost of living adjustment and the cost of posting allowance that is the difference between the amount they received and the amount they would have been paid had this Determination commenced on 1 July 2017.

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 as provided for in Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.

Consultation

Before this Determination was made, consultation was undertaken with Navy, Army and Air Force, as well as the Directorates of APS Workplace Relations and People Systems Business Analysis. 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 (Long-term overseas posting conditions) Determination 2019 (No. 12)

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 amend provision relating to the cost of living adjustment and cost of posting allowance provided for members who are posted overseas.

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: Some Defence members are required to live and work overseas on long-term postings. This could cause the member and their family economic hardship during the time they are living overseas.

Defence requires its members to perform duty in overseas locations and may extend an overseas posting or post a member to a second overseas location. This could disadvantage a member and their dependants by preventing them from returning to Australia and maintaining close family contact.

Reasonable, necessary and proportionate: This Determination makes amendments to the provisions relating to cost of living adjustment and cost of posting allowance provided for members who are posted overseas.

Additional travel provisions are provided to allow members and their dependants to return to Australia when the member's long-term overseas posting has been extended or if they are posted to a new overseas location. Dependants may also travel to join the member at the overseas location if the member travelled to the overseas location as an unaccompanied member.

Cost of living adjustment

Cost of living adjustment ensures that members who are posted to a location where goods and services are more expensive than in Australia are provided with an allowance to help maintain the purchasing power of the member's income and to provide the member with an equivalent standard of living at the overseas post to that in Australia.

Cost of posting allowance

Cost of posting allowance provides members who are posted overseas an allowance to help compensate them for the financial and non-financial disadvantage suffered. The allowances compensates for: loss of family friends and support networks, high cost of maintaining links in Australia, missing out on significant family events and milestones, loss of spouse or partner income and superannuation, and delay in spouse or partner career advancement.

Travel on extension of posting or second long-term posting overseas

Additional travel provisions are provided to allow members and their dependants to return to Australia when the member's long-term overseas posting has been extended or if they are posted to a new overseas location. Dependants may also travel to join the member at the overseas location if the member travelled to the overseas location as an unaccompanied member.

This Determination amends these provisions to clarify that the dependants are eligible for travel under the provisions when they do not accompany the member. This will allow for the dependants to travel to Australia and return to the overseas location when the member is unable to travel due to service commitments. A new provision has been included to provide travel costs for dependants to join a member at a long-term overseas posting location when the member was posted overseas as an unaccompanied member and is then posted to a new long-term overseas posting location.  

Transitional provision

The transitional provision provides that members who were eligible for the cost of living adjustment and the cost of posting allowance between 1 July 2017 and the commencement of this determination are eligible for the payment of the difference between the amount they received and the amount that would have been payable had this Determination commenced on 1 July 2017. This adjustment ensures that the member is not financially disadvantaged because they were on a salary non-reduction provision.

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