EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Recreation leave) Determination 2018 (No. 23)
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 5 of the Principal Determination sets out provisions dealing with leave for members of the Australian Defence Force (ADF).
The purpose of this Determination is to place a hold on the expiration of a member's recreation leave credits until the last pay day in the leave year 2018 – 2019.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that the whole of this Determination commences 31 May 2018.
Section 3 provides that the authority for the instrument is 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 subsection 5.4.34.1 of the Principal Determination.
The section provides when a member's recreation leave credits will lapse. Despite provisions that specify when a member's credits will expire, the amendments in this determination provide that no credits will expire before the last pay day in the leave year 2018 – 2019, which is three years from the introduction of the new policy on 1 July 2016. This amendment ensures that no member will be disadvantaged by the change in policy. The amendment also removes a note from the table in the subsection which serves no legal purpose.
Consultation
Navy, Army and Air Force were consulted in the making of this Determination. The rulemaker was satisfied that 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 (Recreation leave) Determination 2018 (No. 23)
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 place a hold on the expiration of a member's recreation leave credits until the last pay day in the financial year 2018 – 2019.
Human rights implications
Right to the enjoyment of just and favourable conditions of work
The protection of a person's right to favourable working conditions engages Article 7 of the International Covenant on Economic, Social and Cultural Rights. Article 7 recognises a person's right to rest, leisure and reasonable limitations of working hours and periodic holidays with pay.
ADF members enjoy recreation leave benefits that are at Australian community standards. For many members their recreation leave benefits exceed those standards. Additional recreation leave may accrue for specific types of service, for working long hours and for duty in certain more challenging locations.
On 1 July 2016 changes were made to recreation leave which meant a member's leave credits exceeding 90 days at the end of each financial year expire. Formerly a member's leave credits expired three years after they accrued. The changes mean the expiry date for a recreation leave credit only takes effect if the credit is several years old and part of a very large balance. Members and their Commanding Officers continue to be obliged to discuss and plan for leave in advance of this point. Increased automation also means a member can more easily check the leave credit balance.
The Determination places a hold on the expiration of a member's recreation leave credits until the last pay day in the financial year 2018 – 2019, which is three years from the introduction of the new policy. This ensures no member will be disadvantaged by the change in policy.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Elizabeth Anne Sisley, Acting Assistant Secretary People Policy and Employment Conditions