Defence Determination, Conditions of service Amendment (Paid Parental Leave) Determination 2022 (No. 1)

EXPLANATORY STATEMENT

Defence Determination, Conditions of service Amendment (Paid Parental Leave) Determination 2022 (No. 1)

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 (AI Act).

Determinations made under section 58B of the Defence Act are disallowable legislative instruments subject to the Legislation Act 2003 (Legislation Act). These instruments are also subject to the interpretation principles in the AI Act.

This Determination amends the Principal Determination which provides benefits for members of the Australian Defence Force (ADF) and their families as part of the member’s conditions of service. The Principal Determination provides a range of benefits that recognise the unique nature of military service and the obligation and limitations that military service places on members and their families. Members undertake service in both the domestic and overseas environments, including on deployments. Specific benefits are provided for each environment.

Purpose

To make amendments to parental leave that:

• Provide clarity around the number of paid parental leave days a member is eligible for, and the conditions which apply to the grant of the leave. Members will continue to have access to 20 days (4 weeks) of paid parental leave, the change being that a member’s paid parental leave balance will not be reduced for days they are not required for duty, such as on weekends. There is no reduction in benefit for members accessing paid parental leave.
• Provide transitional provisions for members who were approved paid parental leave between
  19 November 2019 and the commencement of this Determination.
• Provide transitional provisions for members who were approved additional paid parental leave between 10 December 2020 and 8 July 2021.

Operational Details

Details of the operation of the Determination are provided at annex A.

Retrospective application

The retrospective application of this Determination does not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on such person.

Human rights compatibility

The statement of compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 for this Determination is at annex B.

Review options

Decisions that are made under the Principal Determination, as amended by this Determination, 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

Before this Determination was made, consultation was undertaken with Navy, Army and Air Force. The rule maker was satisfied that further external consultation was not required.

Annex A

Defence Determination, Conditions of service Amendment (Paid Parental Leave)

Determination 2022 (No. 1)

Operational details

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

Section 2 provides that this Determination commences on 14 April 2022.

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—Paid parental leave amendments

Section 1 omits and substitutes section 5.7.5 of the Principal Determination which provides paid parental leave for members who are not eligible for maternity leave. The section further provides the conditions which apply to the grant of paid parental leave, which include how the leave can be taken. The section provides that a member is eligible for 20 days of paid parental leave. Previously members were eligible for 28 days of paid parental leave, which included weekends. The section now provides that paid parental leave is to be taken for days that the member would otherwise be required for duty. The consequence of this is that a member’s paid parental leave entitlement remains unchanged. Section 5.7.5 has also been amended to provide that the minimum period of paid parental leave a member can take is one day and the leave can be taken at either full pay or half pay.

Schedule 2—Transitional

Section 2 provides that a member who was approved paid parental leave between 19 November 2019 and the commencement of this Determination is eligible to take paid parental leave in accordance with the periods that were agreed at the time of approval.

Section 3 provides that a member who was approved additional paid parental leave between 10 December 2020 and 8 July 2021 is eligible to take additional paid parental leave in accordance with the periods that were agreed at the time of approval.

Annex B

Defence Determination, Conditions of service Amendment (Paid Parental Leave)

Determination 2022 (No. 1)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Overview of the Determination

The Purpose of this Determination is to do the following:

• To provide clarity around the number of paid parental leave days a member is eligible for, and the conditions which apply to the grant of the leave.
• To provide transitional provisions for members who were approved paid parental leave between 19 November 2019 and the commencement of this Determination.
• To provide transitional provisions for members who were approved additional paid parental leave between 10 December 2020 and 8 July 2021.

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.

Assessment of compatibility

This Determination is compatible with human rights as it provides up to 20 days of paid parental leave to members as a part of their conditions of service package if they are not eligible for maternity leave. This enables members to take leave when becoming a parent of a child.

Conclusion

This Determination is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.