Defence Determination, Conditions of service (Command support clerk non-reduction provisions) Determination 2021 (No. 9)
This Determination amends Defence Determination 2016/19, Conditions of service (the Principal Determination), made under section 58B of the Defence Act 1903 and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (AI 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 AI Act.
The purpose of this Determination is to provide transitional provisions for changes that were made to employment categories under Part 2 of Schedule B.11 of Defence Force Remuneration Tribunal Determination No. 15 of 2008, Salaries, by Defence Force Remuneration Tribunal Determination No. 7 of 2016, Salaries – Army employment categories – amendment. The amendments made by Defence Force Remuneration Tribunal Determination No. 7 of 2016 were to be accompanied by amendments to the Principal Determination to ensure members affected by the restructuring of the employment category are eligible for a salary non-reduction for a period of 3 years from 17 November 2016 and 16 November 2019. While agreed to by the Defence Force Remuneration Tribunal at the time, the salary non-reduction provisions were not implemented.
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 registration.
Section 3 provides that this instrument has authority under section 58B of the Defence Act.
Section 4 defines ‘Determination’ for the purpose of this Determination. It means the Defence Determination 2016/19, Conditions of service, as in force from time to time.
Section 5 affects a member who was eligible for salary under pay grades 2 or 3 of Part 2 of Schedule B.11 of Defence Force Remuneration Tribunal Determination No. 15 of 2008, Salaries, between 17 November 2016 and 16 November 2019. This section provides that the member is eligible for salary between 17 November 2016 and 16 November 2019 at the rate payable under section 3.2.52 of the Principal Determination as though the member were eligible for salary non-reduction from 17 November 2016 and 16 November 2019.
The retrospective effect of this Determination does not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on a person.
Criteria are provided for the exercise of discretion under the Principal Determination, as amended by this Determination. Adverse decisions may be subject to inquiry under the ADF redress of grievance system provided under Part 7 of the Defence Regulation 2016. Also, a person may make a complaint to the Defence Force Ombudsman.
Consultation
The changes made by this Determination are technical in nature and the rule maker was satisfied that further external consultation was not required.
Authority: Section 58B of the
Defence Act 1903
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 transitional provisions for changes that were made to employment categories under Part 2 of Schedule B.11 of Defence Force Remuneration Tribunal Determination No. 15 of 2008, Salaries by Defence Force Remuneration Tribunal Determination 2016/7. The amendments made by Defence Force Remuneration Tribunal Determination 2016/7 were to be accompanied by amendments to the Principal Determination to ensure members affected by the restructuring of the employment category are eligible for a salary non-reduction for a period of 3 years from 17 November 2016 and 16 November 2019.
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 advances human rights by providing members who were affected by organisational change with continuity of salary until they have sufficient time to meet the qualifications required under the restructured employment categories.
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 (Command support clerk non-reduction provisions) Determination 2021 (No. 9) was enacted to address the transitional provisions for members affected by the restructuring of employment categories within the Australian Defence Force. This Determination amends Defence Determination 2016/19, made under section 58B of the Defence Act 1903, to ensure that personnel affected by changes to their employment categories are eligible for a salary non-reduction for a specified period. This was a response to the Defence Force Remuneration Tribunal Determination 2016/7, which was intended to include salary protections but was not implemented. The policy objective of this Determination is to provide continuity of salary for affected members, ensuring they are not disadvantaged during the transition period, thus advancing the protection of their rights to just and favourable conditions of work as outlined in international human rights instruments.
Scope and Application
The Defence Determination, Conditions of service (Command support clerk non-reduction provisions) Determination 2021 applies to members of the Australian Defence Force who were eligible for salary under pay grades 2 or 3 of Part 2 of Schedule B.11 of Defence Force Remuneration Tribunal Determination No. 15 of 2008, Salaries, between 17 November 2016 and 16 November 2019. This Act is made under section 58B of the Defence Act 1903 and is subject to the Acts Interpretation Act 1901 and the Legislation Act 2003. The Determination provides transitional provisions for changes to employment categories that were made by Defence Force Remuneration Tribunal Determination No. 7 of 2016, ensuring that affected members are eligible for a salary non-reduction for a period of 3 years. This Act applies nationally within the Commonwealth of Australia and 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. There are no stated exclusions, exemptions, or thresholds in this Determination, and it does not extend or restrict application through subordinate instruments.
Key Provisions
The Defence Determination, Conditions of service (Command support clerk non-reduction provisions) Determination 2021 (No. 9) amends Defence Determination 2016/19, Conditions of service, made under section 58B of the Defence Act 1903 (section 3). This Determination provides transitional provisions for changes made to employment categories under Part 2 of Schedule B.11 of Defence Force Remuneration Tribunal Determination No. 15 of 2008, Salaries, by Defence Force Remuneration Tribunal Determination No. 7 of 2016, Salaries – Army employment categories – amendment (section 4). Specifically, section 5 of the Determination ensures that a member who was eligible for salary under pay grades 2 or 3 of Part 2 of Schedule B.11 of Defence Force Remuneration Tribunal Determination No. 15 of 2008, Salaries, between 17 November 2016 and 16 November 2019, is eligible for salary at the rate payable under section 3.2.52 of the Principal Determination as though the member were eligible for salary non-reduction from 17 November 2016 and 16 November 2019.
The obligations and requirements imposed by this Determination primarily concern the Defence Force Remuneration Tribunal and the affected members. The Defence Force Remuneration Tribunal is responsible for ensuring that the salary non-reduction provisions are implemented correctly. The affected members, who were eligible for salary under the specified pay grades between the specified dates, are entitled to the salary non-reduction as though they were eligible from the start of the period. Adverse decisions regarding the application of these provisions may be subject to inquiry under the ADF redress of grievance system provided under Part 7 of the Defence Regulation 2016. Additionally, a person may make a complaint to the Defence Force Ombudsman. The Determination also provides criteria for the exercise of discretion under the Principal Determination, as amended by this Determination.
The Determination does not explicitly state any specific offences, penalties, or civil/criminal consequences for breach. However, the retrospective effect of the Determination does not affect the rights of a person (other than the Commonwealth) in a manner prejudicial to that person, nor does it impose any liability on a person (section 5). Any breach of the provisions or adverse decisions regarding the application of the Determination may be subject to inquiry under the ADF redress of grievance system or may be the subject of a complaint to the Defence Force Ombudsman. The 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, as it advances the protection of human rights by providing affected members with continuity of salary until they have sufficient time to meet the qualifications required under the restructured employment categories.