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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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
Overview
The Defence Determination Conditions of Service Amendment (Recreation leave) Determination 2018 (No. 23) amends Defence Determination 2016/19, Conditions of Service, made under section 58B of the Defence Act 1903. This amendment was introduced to address a policy change regarding the expiration of recreation leave credits for members of the Australian Defence Force (ADF). Previously, leave credits exceeding 90 days at the end of each financial year were set to expire, whereas under the new policy they would expire three years after accrual if they were part of a very large balance. This Determination seeks to prevent any member from being disadvantaged by this change, by placing a hold on the expiration of a member's recreation leave credits until the last pay day in the financial year 2018 – 2019. The Determination was made by the Australian Government and is subject to the Legislation Act 2003 and the Acts Interpretation Act 1901, as modified by section 58B of the Defence Act.
The policy objective of this Determination is to ensure that ADF members are not adversely affected by the new policy on the expiration of recreation leave credits. By extending the hold period on the expiration of these credits, the Determination aims to provide ADF members with continued access to their accrued leave benefits, aligning with Australian community standards. The changes introduced by this Determination are compatible with human rights as they protect the right to the enjoyment of just and favourable conditions of work, as recognised by Article 7 of the International Covenant on Economic, Social and Cultural Rights.
Scope and Application
The Defence Determination, Conditions of Service Amendment (Recreation leave) Determination 2018 (No. 23) amends Defence Determination 2016/19, Conditions of service, made under section 58B of the Defence Act 1903 and in accordance with subsection 33(3) of the Acts Interpretation Act 1901. This Determination applies to members of the Australian Defence Force (ADF), specifically concerning the conditions of their recreation leave. It sets a hold on the expiration of a member's recreation leave credits until the last payday in the leave year 2018–2019. The changes ensure that no member is disadvantaged by the new policy introduced on 1 July 2016, which previously allowed credits exceeding 90 days at the end of each financial year to expire. The application of this Determination is limited to the ADF members, and no broader industry or geographic reach is specified. There are no stated exclusions, exemptions, or thresholds beyond the parameters outlined in the Determination. The application of this Determination may be extended or restricted through subordinate instruments as per the authority under section 58B of the Defence Act 1903.
Key Provisions
The Defence Determination, Conditions of Service Amendment (Recreation leave) Determination 2018 (No. 23) amends Defence Determination 2016/19 under section 58B of the Defence Act 1903. This Determination, effective from 31 May 2018, is intended to halt the expiration of a member's recreation leave credits until the last payday in the leave year 2018-2019. Specifically, it amends subsection 5.4.34.1 of the Principal Determination, ensuring that no member's recreation leave credits will expire before this date, thereby preventing any member from being disadvantaged by the policy changes introduced on 1 July 2016. These changes initially stipulated that recreation leave credits exceeding 90 days would expire at the end of each financial year, rather than three years after accrual as previously allowed.
This Amendment imposes certain obligations on the parties it governs. The Australian Defence Force (ADF) members and their Commanding Officers are required to continue planning and discussing leave in advance, ensuring that leave is managed effectively under the new conditions. Additionally, the amendment removes a note from the table in the relevant subsection that serves no legal purpose, streamlining the operational procedures. The Defence Force is also obligated to ensure that members can easily check their leave credit balances, aided by increased automation in leave tracking systems.
Breach of this Determination may result in civil or criminal consequences, although specific offences, penalties, or consequences are not detailed in the text provided. However, in general terms, failure to comply with Defence Determinations can result in disciplinary action against ADF members, which may include fines, loss of rank, or even dismissal from service. The maximum penalties would depend on the severity of the breach and the specific circumstances under which it occurs. The Defence Act and Defence Force Regulations would provide further details on the penalties applicable in such cases.
The compatibility of this Determination with human rights is affirmed under the Human Rights (Parliamentary Scrutiny) Act 2011. It aligns with Article 7 of the International Covenant on Economic, Social and Cultural Rights, which recognises the right to rest, leisure, and reasonable working hours and periodic holidays with pay. By ensuring that no member is disadvantaged by the changes in recreation leave policy, the Determination upholds the right to just and favourable conditions of work, protecting the welfare of ADF members.