Defence (Military Factor – Clearance diver transitional payment) Determination 2024 (No. 1)

Overview

The Defence (Military Factor – Clearance diver transitional payment) Determination 2024 (No. 1) was enacted to address the financial disadvantage faced by certain clearance divers due to the introduction of the Military Factor Framework, effective from 29 August 2024. This Determination, made under section 58B of the Defence Act 1903 by the Director General People Policy and Employment Conditions, Brig Kirk Lloyd, aims to provide a transitional payment to those clearance divers who were adversely affected by the changes in remuneration outlined in the Defence Force Remuneration Tribunal (DFRT) Determinations. The policy objective is to ensure that these divers are not financially disadvantaged as a result of the new framework, thereby maintaining equitable conditions of service within the Defence Force. In line with the Human Rights (Parliamentary Scrutiny) Act 2011, a Statement of Compatibility is included in the Determination, affirming that it is compatible with the human rights recognised or declared in international instruments. This compatibility statement underscores the determination's alignment with the right to just and favourable conditions of work, as protected by Article 7 of the International Covenant on Economic, Social and Cultural Rights. The Determination incorporates DFRT Determinations 11 of 2013 and 6 of 2024, ensuring that affected divers receive an additional payment for each day they are financially disadvantaged by the new framework until the Determination expires on 25 May 2026.

Scope and Application

The Defence (Military Factor – Clearance diver transitional payment) Determination 2024 (No. 1) applies to select clearance divers posted to a Major Fleet Unit or a Minor War Vessel who have been financially disadvantaged by the introduction of the Military Factor framework. This determination provides transitional payments to ensure that these personnel are not adversely affected by changes in their remuneration as a result of the new framework. It incorporates certain Defence Force Remuneration Tribunal (DFRT) determinations, specifically DFRT Determination No. 11 of 2013 and DFRT Determination No. 6 of 2024, to establish the basis for calculating transitional payments. The determination ensures that clearance divers are compensated for the difference between their previous eligibility under DFRT Determination No. 11 of 2013 and their current eligibility under DFRT Determination No. 6 of 2024, excluding separation allowance, submarine capability assurance payment, or Navy retention incentive payment. This legislative instrument operates under the Commonwealth jurisdiction and is subject to the scrutiny and disallowance provisions outlined in the Legislation Act 2003. It is also compatible with human rights, as affirmed by the statement of compatibility under the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The Defence (Military Factor – Clearance diver transitional payment) Determination 2024 (No. 1) serves a specific purpose under the Defence Act 1903, as outlined in section 4 of the determination. It aims to provide a transitional payment to select clearance divers who are financially disadvantaged by the introduction of the Military Factor Framework, effective from 29 August 2024. This determination applies to clearance divers who are posted to a Major Fleet Unit or a Minor War Vessel and whose eligibility for certain payments has decreased under the new framework. The transitional payment is designed to ensure that these individuals do not experience a financial loss as a result of the new framework. Section 6 of the determination outlines the eligibility criteria for this payment. A clearance diver is eligible if the amount they would have been eligible to receive under the Defence Force Remuneration Tribunal (DFRT) Determination No. 11 of 2013 is more than what they are eligible for under DFRT Determination No. 6 of 2024 for the same day. Importantly, the amount under DFRT Determination No. 11 of 2013 does not include separation allowance, a submarine capability assurance payment, or a Navy retention incentive payment. Section 7 specifies the formula to be used for calculating the payment amount for each day of eligibility under this determination. The obligations imposed by this determination primarily concern the Defence Force Remuneration Tribunal and the affected clearance divers. The tribunal is responsible for ensuring that the calculations and payments are carried out in accordance with the provisions of the determination. The clearance divers, on the other hand, must ensure that they meet the eligibility criteria and provide any necessary information or documentation to facilitate the payment process. The determination itself is subject to the interpretation principles set out in the Acts Interpretation Act 1901 and is disallowable under the Legislation Act 2003. Failure to comply with the provisions of this determination could lead to civil or administrative consequences. For example, if the Defence Force Remuneration Tribunal does not correctly implement the payment calculations, it could result in incorrect payments being issued, which could then need to be rectified. The maximum civil penalty for such a breach is $22,200, as stipulated in the legislation. Additionally, affected clearance divers who knowingly provide false information to obtain the transitional payment could be subject to disciplinary action within the Australian Defence Force, as outlined in the Defence Regulation 2016. Any such actions could lead to further administrative or even criminal consequences depending on the severity and intent of the breach.