Defence Determination, Conditions of Service Amendment (Public transport and school transport costs) Determination 2018 (No. 16)

Administered by Department of Defence

Legislation au F2018L00501 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Public transport and school transport costs) Determination 2018 (No. 16)

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, as modified by section 58B of the Defence Act.

Chapter 15 of the Principal Determination sets out provisions dealing with living and working on long-term posting overseas for members of the Australian Defence Force (ADF).

The purpose of this Determination is to:

  • Provide the current figures used to calculate how much a member may be reimbursed for public transport costs at an overseas posting location when travelling to and from their normal place of duty.
  • Provide the current figures which are to be used to calculate how much a member may be reimbursed for school transport costs at an overseas posting location when the member has a child who is a dependant travelling to and from school.

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

Section 2 provides that this instrument commences on 3 May 2018.

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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 amends Defence Determination 2016/19, Conditions of service

Section 1 omits and substitutes section 15.3.7 of the Principal Determination, which provided when a member may be reimbursed for public transport costs while at an overseas posting location, and how to calculate the reimbursement amount. The new section provides the following.

  • Subsection 15.3.7.1 provides when a member is eligible to be reimbursed for excess public transport costs. The subsection states that a member may only claim a reimbursement when they have exceeded AUD 1,350.20 in public transport costs between their home and their normal place of duty in one calendar year. This figure is reviewed annually and is based on the cost of what a member would expect to pay over one calendar year, in Canberra, on public transport.
  • Subsection 15.3.7.2 provides a formula for calculating the claimable excess transport costs eligible contribution amount for public transport at an overseas location.

The formula uses 215 days as the number of work days applicable to a member at an overseas location per annum. This number is based on the number of work days in a year less public holidays and 20 annual leave days.

The formula requires the cost of public transport in the overseas location to be converted to AUD for the purposes of calculating the reimbursement.  The exchange rate which is to be used by a member to convert the figure, from the currency in which the cost was incurred to AUD, is available on the member's fortnightly payment summery, which is provided to the member by the Department of Foreign Affairs and Trade, for the payday prior to 1 March of the relevant year. If a situation arises where this rate is unavailable to the member, it will be provided by the Department of Defence directly. Specifics relating to the how a member can access this information will follow this subsection as guidance on the 'Defence Pay and Conditions' website.

Section 2 omits and substitutes section 15.6.11 of the Principal Determination, which provided when a member may be reimbursed for school transport costs for a dependant who is a child, while at an overseas posting location, and how to calculate the reimbursement amount. The new section provides the following.

  • Subsection 15.6.11.1 provides when a member has a dependant who is a child attending school, the member is eligible to be reimbursed for excess school transport costs. The subsection states that a member may only claim a reimbursement when they have exceeded AUD 368.90 in school transport costs in one calendar year. This figure is reviewed annually and is based on the cost of what a member would expect to pay over one calendar year, in Canberra, on school transport.
  • Subsection 15.6.11.2 provides a formula for calculating the claimable excess transport costs for school transport at an overseas location.

The formula uses 155 days as the number of school days applicable for a child attending school at an overseas location per annum. This number has decreased due to the number of school days in a year, less public holidays.

The formula requires the cost of school transport in the overseas location to be converted to AUD for the purposes of calculating the reimbursement.  The exchange rate which is to be used by a member to convert the figure, from the currency in which the cost was incurred to AUD, is available on the member's fortnightly payment summery, which is provided to the member by the Department of Foreign Affairs and Trade, for the payday prior to 1 March of the relevant year. If a situation arises where this rate is unavailable to the member, it will be provided by the Department of Defence directly. Specifics relating to the how a member can access this information will follow this subsection as guidance on the 'Defence Pay and Conditions' website.

  • Subsection 15.6.11.3 provides that when a member is claiming school transport costs they may claim the lesser of the following, the costs that would be payable if the member's child was attending a benchmark school, or the costs that have been paid by the member for the child.

Consultation

The Navy, Army and Air Force were consulted in the development of this Determination. 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 (Public transport and school transport costs) Determination 2018 (No. 16)

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 Determination has the following two purposes.

  • Provide the current figures used to calculate how much a member may be reimbursed for public transport costs when travelling to and from their normal place of duty at an overseas posting location.
  • Provide the current figures which are to be used to calculate how much a member may be reimbursed for school transport costs when the member has a child who is a dependant travelling to and from school at an overseas posting location.

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 adjusts member contribution rates towards public transport costs and school transport costs, for members posted overseas.

Reasonable, necessary and proportionate: A policy principle underpinning many aspects of ADF member overseas conditions is that members posted to locations that are more expensive to live in than Australia should not be disadvantaged by those expensive local conditions and the Commonwealth should provide a subsidy to the member. Transport cost benefits are examples of the application of this policy.

Members in Australia are not ordinarily reimbursed the costs of travelling to and from work, or the costs of their children travelling to and from school. It is a long-standing industrial principle that these are private expenses. The public transport and school transport benefits do pay for these expenses, but the member is required to make a contribution. The contribution for public transport costs and school transport costs is based on the Australian public transport cost (with Canberra's costs chosen as a benchmark, as there is some fluctuation between States).

The requirements on members to contribute towards these benefits ensure that they do not receive a 'windfall gain' by being posted to an expensive overseas location, but have approximate parity with their working conditions in Australia.

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 (Public transport and school transport costs) Determination 2018 (No. 16) was enacted to address the need for updated figures used in the calculation of reimbursements for public transport and school transport costs for members of the Australian Defence Force (ADF) posted overseas. This Determination, made under section 58B of the Defence Act 1903, was developed by the Australian government to ensure that ADF members do not face financial disadvantages due to the higher costs of living in overseas locations compared to Australia. It amends the Defence Determination 2016/19, Conditions of service, by adjusting the reimbursement figures and the method of calculating the excess costs eligible for reimbursement, ensuring that the members' transport costs are fairly benchmarked against Australian standards. The policy objective of this Determination is to provide a fair and reasonable means for ADF members to claim reimbursement for public and school transport costs incurred while posted overseas, ensuring that these members are not financially disadvantaged due to the higher cost of living in overseas locations. This is achieved by setting specific figures for the maximum reimbursable costs and establishing a formula that adjusts these costs based on the actual costs incurred in the overseas location, compared to a benchmark set by Canberra's public transport and school transport costs. The Determination also ensures that members contribute a portion of these costs, aligning with the principle that these are private expenses, but with a government subsidy to prevent members from being overly burdened by the costs of living abroad.

Scope and Application

The Defence Determination, Conditions of Service Amendment (Public Transport and School Transport Costs) Determination 2018 (No. 16) amends the Defence Determination 2016/19, Conditions of service, under section 58B of the Defence Act 1903. This Determination applies to members of the Australian Defence Force (ADF) who are posted overseas and provides updated figures for calculating reimbursements for public transport and school transport costs incurred by these members. The primary aim is to ensure that ADF members posted overseas do not incur excessive personal costs due to their overseas postings, while also preventing members from receiving a 'windfall gain' by being posted to a more expensive location. Members can claim excess costs above a certain threshold, which is reviewed annually and is based on the costs in Canberra. This Determination, while not extending or restricting its application through subordinate instruments, is subject to the interpretation principles in the Acts Interpretation Act 1901 and the Legislation Act 2003. It is compatible with human rights as it ensures just and favourable conditions of work for ADF members posted overseas.

Key Provisions

The Defence Determination, Conditions of Service Amendment (Public transport and school transport costs) Determination 2018 (No. 16) (the Determination) amends the Defence Determination 2016/19, Conditions of service (the Principal Determination) made under section 58B of the Defence Act 1903. The key changes introduced by this Determination are found in Schedule 1, which specifically modifies sections 15.3.7 and 15.6.11 of the Principal Determination. Section 15.3.7 now outlines the conditions under which a member of the Australian Defence Force (ADF) may claim reimbursement for excess public transport costs incurred while posted overseas. Members are eligible for reimbursement only if their annual public transport costs exceed AUD 1,350.20, a figure that is subject to annual review. The reimbursement calculation uses a formula that factors in the number of workdays at the overseas location, which is set at 215 days per year, and requires the conversion of overseas transport costs to Australian dollars using a specified exchange rate. Section 15.6.11, on the other hand, addresses the reimbursement for excess school transport costs for dependant children attending school while the member is posted overseas. Members can claim reimbursement if their annual school transport costs exceed AUD 368.90, another figure reviewed annually. The reimbursement formula for school transport is based on 155 school days per year, and it also requires the conversion of school transport costs to Australian dollars using the specified exchange rate. The Determination imposes specific obligations on ADF members seeking reimbursement for public and school transport costs when posted overseas. Members must ensure that their annual transport costs exceed the specified thresholds before they can claim a reimbursement. For public transport, they must use the cost conversion formula based on the applicable exchange rate, and for school transport, they must adhere to the school days count and conversion rate. Members are also required to access the exchange rate information from their fortnightly payment summary or directly from the Department of Defence if necessary. Additionally, when claiming school transport costs, members must claim the lesser of either the benchmark school costs or the actual costs they have paid. The Determination does not explicitly detail offences, penalties, or consequences for breach within its text. However, it is reasonable to infer that non-compliance with the outlined procedures for claiming reimbursements, such as providing incorrect or manipulated cost data, could potentially lead to disciplinary actions under the Defence Act or other relevant legislation. The seriousness of the breach, such as intent to defraud or significant financial impact, could result in more severe consequences, including administrative penalties or even criminal charges if the breach is deemed fraudulent. Given the context of Defence-related legislation, any breach might also affect a member's standing and career within the ADF.

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