EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Reserve capability payment and Reserve capability completion bonus) Determination 2019 (No. 9)
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 and section 58B of the Defence Act.
Chapter 3 of the Principal Determination sets out provisions dealing with salaries and bonuses for members of the Australian Defence Force (ADF).
The High Readiness Reserve (HRR) bonus was approved 2006 and was incorporated into the Principal Determination. Changes in terms used for categories of the Reserve brought about by the introduction of the Defence Regulations 2016 are not reflected in the Air Force and Army High Readiness Reserve (HRR) completion bonus policies (PACMAN Chap 3, Part 5, Divisions 7 & 8). The High Readiness Reserve has been re-classified as Service Category 4 (SERCAT 4).
In 2018 Navy, Army and Air Force agreed to amend the Reserve Capability Payment (RCP) policy to provide for a completion bonus for SERCAT 4. This bonus will apply to all three Services.
The extant Air Force and Army HRR completion bonus policies do not align with the current Defence Regulations. Amending the RCP policy to deliver the SERCAT 4 completion bonus provides a relatively quick way of resolving this anomaly. It would allow the current Air Force and Army HRR policies to be retired.
The purpose of this Determination is to provide a Reserve capability bonus to members of the Reserve who have made a written undertaking to provide capability at short-notice and who are assigned as Service Category 4 by their Service. It also amends the Reserve capability payment to provide further clarity.
Service in Service Category 4 imposes additional obligations on members and therefore attracts an additional benefit.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 4 April 2019.
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 – Amendment to Defence Determination 2016/19, Conditions of Service
Section 1 amends section 3.5.3 of the Principal Determination which provides a contents list for Chapter 3 Part 5. Entries for Division 2A and a new Division 2B have been included.
Section 2 omits section 3.5.14B of the Principal Determination, which provides definitions of specific terms. This section has been omitted because the defined terms are no longer required.
Section 3 amends section 3.5.14C of the Principal Determination, which provides when a member may be eligible to receive a Reserve capability payment. The section has been amended to clarify the members to whom the payment applies to.
Section 4 amends section 3.5.14D of the Principal Determination, which provides when the CDF may offer a member of the Reserves a Reserve capability payment and what must be included in the offer. Provisions within the section have been amended to provide clarity to the reader, however the underlying policy remains unchanged.
Section 5 amends section 3.5.14E of the Principal Determination, which provides the conditions which apply when accepting an offer of a Reserve capability payment under section 3.5.14D of the Principal Determination. The section has been amended to provide clarify for the reader, however the underlying policy remains unchanged.
Schedule 2 – Amendment to Defence Determination 2016/19, Conditions of Service
Section 1 inserts a new Division 2B into the Principal Determination. The new Division provides a Reserve capability completion bonus for members of the Reserves who provide capability on short-notice.
- Section 3.5.14G provides the purpose of the Division.
- Section 3.5.14H identifies the members who are eligible for the Reserve capability completion bonus.
- Section 3.5.14I provides a Reserve capability payment of $5,000 to members of the Reserves who have made an undertaking for service in Service category 4 with their service, completed the required amount of time in Service category 4, and met all the conditions specified in the Service category 4 undertaking.
- Section 3.5.14J provides circumstances where a member may receive a reduced Reserve capability payment if they fail to meet the eligibility criteria for the bonus. It also includes a formula which is to be used to calculate the reduced payment.
Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system under Part 7 of the Defence Regulation 2016, which provides a merit review process. A person may make a complaint to the Defence Force Ombudsman.
Consultation
Air Force and the Department of Defence Total Workforce Model Co-Design Working Group, which consists of tri-service representatives, 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 (Reserve capability payment and Reserve capability completion bonus) Determination 2019 (No. 9)
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
This Determination inserts an additional benefit, and makes technical amendments to Defence Determination 2016/19, Conditions of service.
The purpose of this Determination is to provide a Reserve capability bonus to members of the Reserve who have made a written undertaking to provide capability at short-notice, and are assigned as Service Category 4 by their service. It also amends the Reserve capability payment to clarify some of the provisions.
Service in Service Category 4 imposes additional obligations on members and therefore attracts an additional benefit.
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: Defence members who are assigned as Service category 4 by their service agree to provide a higher "short-notice to move" compared to other members of the Reserves. The purpose of the Reserve capability payment is to provide these members with a bonus once they have completed the prescribed period of service agreed to in their Service category 4 undertaking.
Reasonable, necessary and proportionate: This Determination provides a payment to members who have agreed to provide capability at short-notice to their service. This ensures that they receive just and favourable remuneration in accordance with Article 7.
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