Defence Determination, Conditions of Service Amendment (Reserve capability payment and Reserve capability completion bonus) Determination 2019 (No. 9)

Administered by Department of Defence

Legislation au F2019L00439 Not in force Legislative Instrument

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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

 

 

 

Overview

The Defence Determination, Conditions of Service Amendment (Reserve capability payment and Reserve capability completion bonus) Determination 2019 (No. 9) was enacted to address a gap in the existing policies regarding the remuneration of members of the Reserve who are assigned to Service Category 4. This Determination was introduced by the Australian Government and operates under the authority of section 58B of the Defence Act 1903. Its primary objective is to provide a Reserve capability bonus to members who have made a written undertaking to provide capability at short-notice and are assigned as Service Category 4 by their service, as well as to amend the Reserve capability payment to offer further clarity. This adjustment acknowledges the additional obligations placed on members in Service Category 4 by offering them an additional benefit. The Determination ensures that members who have committed to providing capability at short-notice are suitably rewarded, aligning their remuneration with the level of commitment and obligation. By providing a Reserve capability completion bonus, the legislation seeks to uphold the protection of human rights, particularly the right to just and favourable conditions of work as enshrined in Article 7 of the International Covenant on Economic, Social and Cultural Rights. This Determination also aims to correct discrepancies in existing policies, ensuring they are consistent with current Defence Regulations. The Determination was developed in consultation with relevant stakeholders, including Air Force and the Department of Defence Total Workforce Model Co-Design Working Group, and was deemed compatible with human rights, providing a fair and reasonable approach to remuneration for Reserve members.

Scope and Application

The Defence Determination, Conditions of Service Amendment (Reserve capability payment and Reserve capability completion bonus) Determination 2019 (No. 9) amends Defence Determination 2016/19, Conditions of service, made under section 58B of the Defence Act 1903. This determination applies to members of the Australian Defence Force (ADF) who are assigned as Service Category 4, which now includes the previously classified High Readiness Reserve. The amendment introduces a Reserve capability completion bonus for members who have made a written undertaking to provide capability at short-notice, and it also aims to clarify the Reserve capability payment provisions. The changes are designed to resolve policy anomalies and improve alignment with current Defence Regulations. The amendments come into effect on 4 April 2019, and are subject to the interpretation principles in the Acts Interpretation Act 1901 and the Legislation Act 2003. The authority for this amendment is derived from section 58B of the Defence Act 1903, and it has been declared compatible with human rights as it provides just and favourable remuneration to Defence members who undertake additional obligations.

Key Provisions

The Defence Determination, Conditions of Service Amendment (Reserve capability payment and Reserve capability completion bonus) Determination 2019 (No. 9) introduces significant changes to the Defence Determination 2016/19, Conditions of Service (the Principal Determination). Section 2 of this Determination specifies that it commences on 4 April 2019, and Section 3 confirms its authority under section 58B of the Defence Act 1903. This Determination amends the Principal Determination by inserting new provisions and clarifying existing ones, particularly relating to the Reserve capability payment and Reserve capability completion bonus for members of the Reserve who are assigned as Service Category 4. The amendments outlined in Schedule 1 modify various sections of the Principal Determination. Section 1 updates the contents list of Chapter 3 Part 5, incorporating new Division 2A and Division 2B. Section 2 omits section 3.5.14B, which previously defined specific terms that are now deemed unnecessary. Section 3 and Section 4 amend sections 3.5.14C and 3.5.14D, respectively, to clarify the eligibility criteria for Reserve capability payment and the conditions under which the Chief of the Defence Force (CDF) may offer such payments. These amendments aim to provide clearer guidelines while maintaining the underlying policy unchanged. Schedule 2 introduces a new Division 2B, which provides a Reserve capability completion bonus of $5,000 for eligible members. The obligations imposed by this Determination on the parties it governs include ensuring that Reserve members who are assigned as Service Category 4 and have made a written undertaking to provide capability at short-notice are eligible for the Reserve capability bonus. Service in Service Category 4 requires members to be prepared to move on short notice, and in return, they are entitled to additional benefits such as the Reserve capability bonus and payment. The provisions in this Determination ensure that the ADF adheres to the agreed terms and provides the specified benefits to eligible members. Breach of the provisions outlined in this Determination can lead to civil or administrative consequences. Members who fail to meet the eligibility criteria for the Reserve capability bonus may receive a reduced payment, as specified in Section 3.5.14J. Additionally, adverse decisions regarding the Reserve capability payment or bonus may be subject to inquiry under the ADF redress of grievance system. This system provides a merit review process as outlined in Part 7 of the Defence Regulation 2016, and members have the right to make a complaint to the Defence Force Ombudsman. These measures ensure that the rights and obligations under this Determination are upheld and that any grievances are appropriately addressed.

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