Defence Determination, Conditions of service Amendment (Omnibus) Determination 2020 (No. 1)

Defence Determination, Conditions of service Amendment (Omnibus) Determination 2020 (No. 1)

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 (AI 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 AI Act.

The Determination makes reference to the AI Act. This instrument is incorporated into the Determination as in force from time to time. Section 1.2.5A of the Principal Determination specifies that a reference to an Act of Parliament or a legislative instrument to which section 14(3) of the AI Act applies are incorporated as in force from time to time, unless otherwise stated.

This Determination amends the following Chapters of the Principal Determination for members of the Australian Defence Force (ADF).

• Chapter 3 sets out provisions dealing with salaries and bonuses.
• Chapter 4 sets out provisions dealing with allowances and reimbursements.
• Chapter 6 sets out provisions dealing with relocations on posting in Australia.
• Chapter 9 sets out provisions dealing with travel costs in Australia.

The purpose of this Determination is to provide the following:

• To clarify the eligibility period for executive vehicle allowance for members who have been directed to act at a star rank and members who have been directed to perform higher duties of a star rank.
• To amend the eligibility period for evacuation assistance.
• To clarify the reunion travel provisions for members.
• To allow members to use multiple reunion travel benefits at one time to offset the cost of travel for multiple dependants to visit the member at their duty location.
• To provide salary non-reduction provisions for members of the Air Force who transfer to a Network Technician employment category.
• To provide salary non-reduction provisions for members of the Navy who transfer to a Maritime Human Resource Officer employment category.
• To remove employment categories from the salary non-reduction provisions when the non-reduction period has expired.
• To remove expired transitional provisions for members of the Reserves.

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

Section 2 provides that sections 1 to 4, Schedule 1, Schedule 3 and Schedule 4 of this Determination commence on 9 January 2020. It also provides that Schedule 2 of this Determination commences on 6 February 2020.

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—Executive vehicle allowance and evacuation assistance amendments

Section 1 omits and substitutes paragraph 4.6.6.2.b of the Principal Determination which provides that a member who has been directed to act at a star rank or perform duties at a star rank is eligible for executive vehicle allowance when they perform those duties for three months or more. The paragraph is being amended to provide that if the member is directed to act at a star rank the eligibility period for executive vehicle allowance is four weeks or more. A new paragraph c. has been added to provide that when a member has been directed to perform higher duties at a star rank the eligibility period for executive vehicle allowance is three months or more.

Section 2 amends section 7.11.3 of the Principal Determination which provides the period in which evacuation assistance may be provided. Subsection 7.11.3.1 is being amended to clarify when the period of evacuation assistance commences.

Schedule 2—Reunion travel for members amendments

Section 1 amends section 6.5.23 of the Principal Determination cross reference notes are being removed as they are non-legislative in nature.

Section 2 omits and substitutes Chapter 9 Part 3 Division 4 of the Principal Determination which provides reunion travel at Commonwealth expense to reunite a member with dependants who do not accompany the member to their posting location. The Division has been rewritten to provide clarity to the reader and to provide that a member may use multiple reunion credits to allow for multiple dependants to visit the member at their duty location. The Division now provides the following.

• Section 9.3.28 provides the purpose of the Division. More clarity is provided as to the purpose of the reunion travel benefit and the reader is informed that the benefit may be used by the member to visit the dependants or the dependants to visit the member.
• Section 9.3.29 provides which members the Division applies to.
• Section 9.3.30 provides the number of reunion travel credits a member not on a flexible service determination is eligible for.
• Section 9.3.31 provides the number of reunion travel credits a member on a flexible service determination is eligible for and the methods used to calculate the number of credits.
• Section 9.3.32 provides when reunion travel credits are credited to the member and when they expire.
• Section 9.3.33 provides what benefit is provided for a reunion travel credit.
• Section 9.3.33A provides the following conditions relating to the use of reunion travel credits.

• Reunion travel credits may be used by the member or their dependants.
• A form of leave must be approved before the member can use the credits. This does not apply if the dependants visit the member. A discretion was formerly provided to approve reunion travel, conditional on the member having enough leave credits and whether operational requirements may be disrupted. This is taken into consideration when approving the member's leave, therefore the approval of leave is all that is necessary for the member to be eligible for reunion travel.
• Reunion credits may be used either as one credit for each person who travels, or as a dollar value equal to the cost of travel for the member to visit the dependants at the dependants location.
• When a member's reunion travel credits are reduced.

• Section 9.3.33B provides a Chief of the Defence Force discretion to approve a member to use multiple reunion travel benefits at one time to offset the cost of travel for multiple dependants to visit the member at their duty location.

Section 3 inserts a new section 9.4.4A into the Principal Determination which sets out the interaction between recreation leave travel, remote location leave travel and reunion travel for members. A combined total for these forms of travel must not exceed seven trips in a year. The provision was formerly provided under subsection 9.3.30.5, subsection 9.4.8.5 and section 9.4.39 of the Principal Determination, omitted by sections 2, 4 and 6 of this Schedule respectively.

Section 4 omits subsection 9.4.8.5 of the Principal Determination which provides that the total number of recreation leave travel, reunion travel and remote location leave travel trips a member can take in a year is seven. This rule is provided under section 9.4.4A, consequential upon section 3 of this Schedule. The subsection is replaced with a legislative note that advises the reader of the rule under section 9.4.4A.

Section 5 amends section 9.4.23 of the Principal Determination which provides the purpose of remote location leave travel. The section has been amended by inserting a legislative note that informs the reader that the total number of recreation leave travel, reunion travel and remote location leave travel trips a member can take in a year is seven. This rule is provided under section 9.4.4A, consequential upon section 3 of this Schedule.

Section 6 omits section 9.4.39 of the Principal Determination which provided that the total number of recreation leave travel, reunion travel and remote location leave travel trips a member can take in a year is seven. This rule is provided under section 9.4.4A, consequential upon section 3 of this Schedule.

Schedule 3—Salary non-reduction amendments

Section 1 amends section 3.2.2 of the Principal Determination which provides the contents for Chapter 3 Part 2. The section has been amended to remove references for Annex 3.2.A and Annex 3.2.C which have been removed by sections 8 and 10 of this Schedule.

Section 2 omits section 3.2.31 from the Principal Determination which provided a transition provision for members of the High Readiness Specialist Reserve and Specialist Reserve. This provision was to ensure that a member would move up an additional incremental rate of salary within a 12 month period between 2 July 2015 and 1 July 2016. This provision is being omitted as the relevant period has passed and it no longer applies.

Section 3 omits section 3.2.32 from the Principal Determination which provided a placement provision for members of the Reserves who may have been affected by changes made to the incremental salary structure on 2 July 2015. This provision is being omitted as the relevant period has passed and it no longer applies.

Section 4 amends the table in section 3.2.49 of the Principal Determination which provides the definitions for Chapter 3 Part 2 Division 5. The definition of 'Relevant employment category' is being amended to reflect changes made by sections 7, 8 and 10 of this Schedule.

Section 5 amends section 3.2.50 of the Principal Determination which provides the members to whom Chapter 3 Part 2 Division 5 applies to. A new paragraph 3.2.50.f has been inserted to provide that the Division applies to a member of the Air Force who volunteers to transfer from a Communication Electronic Technician employment category to a Network Technician employment category between 25 June 2020 and 24 June 2025.

Section 6 amends paragraph 3.2.51.d of the Principal Determination which provides that Chapter 3 Part 2 Division 5 does not apply to a member who chooses to transfer to another employment category. An administrative note has been added to the paragraph to provide that this paragraph does not apply to a member to whom paragraph 3.2.50.f, inserted by section 5 of this Schedule, applies.

Section 7 omits and substitutes subsection 3.2.52.3 of the Principal Determination which provides the salary non-reduction period for eligible members. The subsection has been amended to reflect changes made to the Annexes referenced in the table. Item 2 of the table previously referenced Annex 3.2.C which has been omitted by section 10 of this Schedule. After the removal of expired employment categories from Annex 3.2.C only one category remained and it has now been included as item 2 of the table.

Section 8 omits Annex 3.2.A of the Principal Determination which set out the transitional increment conversion table for Reservists for a 12 month period from 2 July 2015. The annex is being omitted as the relevant period has passed and it no longer applies.

Section 9 omits and substitutes Annex 3.2.B of the Principal Determination which provides salary non-reduction for members with the rank of Warrant Officer Class 1 or lower. The Annex has been amended to make the following changes.

• It includes Air Force Network Technician employment categories for a salary non-reduction period of 25 June 2020 to 24 June 2025. This ensures that members who transfer from Communications Electronic Technician employment categories are not disadvantaged. 
• It removes the employment categories where the salary non-reduction period has ended.
• All other salary non-reduction provisions remain the same.

Section 10 omits Annex 3.2.C from the Principal Determination which provided salary non-reduction for Flight Test Engineers. The Annex is being omitted as the salary non-reduction period for a number of the employment categories has ended, the one remaining employment category has been moved to subsection 3.2.52.3 table item 2 by section 7 of this Schedule.

Section 11 omits and substitutes Annex 3.2.D of the Principal Determination which provides salary non-reduction for a member who is an officer. The table has been amended to provide a salary non-reduction period for Navy officers who volunteer to transfer from the Management Executive – Strategic Military Human Capability Management employment categories to the Maritime Human Resource Officer employment categories, commencing on 30 June 2020 and ending on 29 June 2025. This ensures that members who transfer from the Management Executive – Strategic Military Human Capability Management employment category are not disadvantaged.

Schedule 4—Transitional provisions

Section 1 provides a transitional provision for members who were evacuated from a Defence establishment between 12 December 2019 and the commencement of this Determination. The transitional provision provides that the member is eligible for evacuation assistance under Chapter 7 Part 11 of the Principal Determination had Schedule 1 section 2 applied.

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. A person may make a complaint to the Defence Force Ombudsman.

Consultation

Before this Determination was made, Navy, Army and Air Force were 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 provide the following:

• To clarify the eligibility period for executive vehicle allowance for members who have been directed to act at a star rank and members who have been directed to perform higher duties of a star rank.
• To amend the eligibility period for evacuation assistance.
• To clarify the reunion travel provisions for members.
• To allow members to use multiple reunion travel benefits at one time to offset the cost of travel for multiple dependants to visit the member at their duty location.
• To provide salary non-reduction provisions for members of the Air Force who transfer to a Network Technician employment category.
• To provide salary non-reduction provisions for members of the Navy who transfer to a Maritime Human Resource Officer employment category.
• To remove employment categories from the salary non-reduction provisions when the non-reduction period has expired.
• To remove expired transitional provisions for members of the Reserves.

Human rights implications

Schedule 1 Executive vehicle allowance and evacuation assistance amendments

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.

The protection of a person's right to an adequate standard of living engages Article 11 of the International Covenant on Economic, Social and Cultural Rights. Article 11 recognises the right of everyone to an adequate standard of living for them and their family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

This Determination recognises the right to an adequate standard of living by providing assistance with the cost of accommodation, meals and incidentals to members and their dependants in the event of an emergency evacuation. This is to ensure the safety and welfare of members and dependants who live on a Defence establishment

Schedule 2—Reunion travel for members amendments

The protection of a person's right to care for dependants engages Article 10 of the International Covenant on Economic, Social and Cultural Rights. Article 10 guarantees the widest possible protection and assistance to families.

Defence often requires its members to relocate to new locations. It recognises the importance of providing assistance to regularly reunite the member with family members who are unable to accompany the member to their posting location.

This Determination provides greater flexibility to a member to reunite with their dependants. A member may now use multiple reunion travel benefits to offset the travel costs of multiple dependants to visit the member at the member's posting location. This Determination also makes the reunion travel benefit provisions easier for the reader to understand.

Schedule 3 – Salary non-reduction amendments

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 ensures that members are not disadvantaged when transferring to a different employment category.

Schedule 4 – Transitional provision

A transitional provision has been provided for members evacuated from a Defence establishment between 12 December 2019 and the commencement of this Determination. The transitional provision that the members are eligible for evacuation assistance under Chapter 7 Part 11 of the Principal Determination had Schedule 1 section 2 applied.

Conclusion

This Determination is compatible with human rights because it advances the protection of human rights.

Michael Ian McCulloch, Acting Assistant Secretary People Policy and Employment Conditions