EXPLANATORY STATEMENT
Defence Determination, Conditions of Service Amendment (Salary non-reduction) Determination 2019 (No. 6)
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.
For the purpose of adopting Defence Force Remuneration Tribunal (DFRT) determinations, being instruments other than a legislative instrument, section 58B(1A) of the Defence Act provides a contrary intention to section 14(2) of the Legislation Act 2003. Section 58B(1A) of the Defence Act permits DFRT determinations, as in force from time to time, being adopted in this determination in accordance with section 14(1)(b) of the Legislation Act 2003.
Chapter 3 of the Principal Determination sets out provisions dealing with salaries and bonuses for members of the Australian Defence Force (ADF).
This Determination has the following three purposes.
- To remove a redundant salary non-reduction provision for Army recruit instructors.
- To provide salary non-reduction for members affected by the restructure of their respective employment categories made by DFRT Determination No. 10 of 2018, Salaries – Army Band Corps – Amendment. The provisions ensure affected members' salaries are not reduced for five years.
- To remove salary non-reduction provisions which have expired.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on 7 March 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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 amends Defence Determination 2016/19, Conditions of service.
Section 1 omits section 3.2.54 of the Principal Determination, which provided that a member who is posted as a Recruit Instructor to the Army 1st Recruit Training Battalion is to be paid the rate of salary they held immediately before the posting for the period of the posting. This provision became redundant after DFRT Determination No. 3 of 2015, Salaries – Amendment provided a member's pay grade is increased by one if they are posted to a designated recruit instructor position at 1st Recruit Training Battalion.
Section 2 omits and substitutes Annex 3.2.B of the Principal Determination, which provides salary non-reduction for Warrant Officer Class 1 or lower members whose salaries would otherwise be reduced.
Part 1 of the Annex provides salary non-reduction for members with the rank of Warrant Officer Class 1.
The changes provide a five year salary non-reduction for Army Band Corps members in the following employment categories and pay grades: Musician Grade 2 (pay grade 4), Musician Grade 3 (pay grades 5, 6 and 8) and Pipe Major (paygrade 5). Salary non-reduction provisions which have expired are removed.
Part 2 of the Annex provides salary non-reduction for members with the rank of Warrant Officer Class 2 or lower.
The changes provide a five year salary non-reduction for Army Band Corps members in the following employment categories and pay grades: Musician Grade 1 (pay grade 3), Musician Grade 2 (pay grade 4), Musician Grade 3 (pay grade 5), Pipe Drummer and Bugler Grade 1 (pay grade 3), Pipe Drummer and Bugler Grade 2 (pay grade 4), Drum Major (paygrade 5) and Pipe Major (pay grade 5). Salary non-reduction provisions which have now expired are removed.
Consultation
Navy, Army and Air force were consulted and agreed to the changes made by this Determination. No external consultation was undertaken in accordance with section 17 of the Legislation Act 2003
as the amendment is of a minor or machinery nature and does not substantially alter existing arrangements.
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 (Salary non-reduction) Determination 2019 (No. 6)
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 has the following three purposes.
- To remove a redundant salary non-reduction provision for Army recruit instructors.
- To provide salary non-reduction for members affected by the restructure of their respective employment categories made by DFRT Determination No. 10 of 2018, Salaries – Army Band Corps – Amendment. The provisions ensure affected members' salaries are not reduced for five years.
- To remove salary non-reduction provisions which have expired.
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: This Determination advances the specific rights in articles 7(a) and 7(c). It ensures that ADF members who are categorised as Musician grades 1, 2 and 3, Piper Drummer and Bugler grades 1 and 2, Drum Major and Pipe Major maintain their level of remuneration based on their qualifications and skills while undergoing re-categorisation.
Reasonable necessary and proportionate: The requirement to serve a specified period of time and gain certain qualifications to be eligible for salary advancement or promotion is consistent with the remuneration right provided by articles 7(a) and 7(c) of this covenant.
At the commencement of this Determination the employment categories of several Army musician employment categories are to be discontinued. This Determination provides a five year salary non-reduction for the affected members to ensure that their rate of salary is maintained while they are given the opportunity to retrain and become eligible for salary advancement or promotion.
Conclusion
This Determination is compatible with human rights because it advances the protection of human rights.
Derek Julian Cox, Acting Assistant Secretary People Policy and Employment Conditions