EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Recreation Leave) Determination 2018 (No. 27)

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 amend the Principal Determination to provide for short periods of recreation leave for 09 and O10 senior officers in the ADF who are in a period of transition from the statutory appointment which they previously held. These new provisions had not been contemplated when the previous suite of senior officer transition provisions were introduced by Defence Determination, Conditions of Service Amendment (Leave) Determination 2018 (No. 22).

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

Section 2 provides that this instrument commences on the day after it is registered.

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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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

Section 1 amends section 5.4.31 of the Principal Determination which provides the conditions relating to the grant of recreation leave for an Australian Defence Force (ADF) member. This section has been amended to include that a senior officer who has transition may be granted no more than a total of two weeks recreation leave during their transition period.

Section 2 amends section 5.4.36 pf the Principal Determination which provides conditions relating to the salary which a member is to be paid while on a period of recreation leave. This section has been amended to provide that for each day of recreation leave taken, a senior officer who transitioned is to be paid an amount in addition to that set out in subsection 5.4.36.1. A formula has also been provided to calculate the amount payable to the senior officer for each day of recreation leave taken during the transition period. This formula has the net effect of the senior officer being paid the same rate of salary during this period of leave as they would have been paid had the senior officer taken this leave while they were a statutory office holder.

Section 3 amends section 5.4.44A of the Principal Determination which provides how to calculate the amount payable to a senior officer who has elected to be paid the accrued leave credit and purchased recreation leave credit at the end of their transition period. The formula now provides that the amount payable must less any amount which was paid to the senior officer during their transition period for recreation leave.

Consultation

The Directorate of Senior Officer Management-ADF was consulted in the development of this Determination. The rulemaker 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 (Recreation Leave) Determination 2018 (No. 27)

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 for short periods of recreation leave for 09 and O10 senior officers in the ADF who are in a period of transition from the statutory appointment which they previously held.

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.

This Determination preserves the value of accrued recreation leave for senior officers in the ADF. This ensures they receive just and favourable remuneration in accordance with Article 7. This Determination ensures that recreation leave taken during the senior officers transition period is paid to the senior officer at the rate they would have been paid if they took the leave during their appointment as Chief of the Defence Force, Vice Chief of the Defence Force, a Service Chief or Chief of Joint Operations.

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