Defence Determination, Conditions of Service Amendment (Hardship Locations and Special

Defence Determination, Conditions of Service Amendment (Hardship locations and special location allowance) Determination 2018 (No.13)

I, FIONA LOUISE McSPEERIN, Assistant Secretary, People Policy and Employment Conditions, make the following Determination under section 58B of the Defence Act 1903.

Dated 29 March 2018

F L McSPEERIN

Assistant Secretary
People Policy and Employment Conditions
Defence People Group

Contents

1Name...... 2

2Commencement...... 2

3Authority...... 2

4Schedules...... 2

Schedule1—Special location allowances3

Defence Determination 2016/19, Conditions of service3

Schedule2—Hardship location conditions of service4

Defence Determination 2016/19, Conditions of service4

Schedule3—Hardship location6

Defence Determination 2016/19, Conditions of service6

1 Name

This instrument is Defence Determination, Conditions of Service Amendment(Hardship locations and special location allowances) Determination 2018 (No. 13).

2 Commencement

This instrument commences on 5 April 2018.

3 Authority

This instrument is made under section 58B of the Defence Act 1903.

4 Schedules

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule1—Special location allowances

Defence Determination 2016/19, Conditions of service

1 Subsection 16.8.3.2 (Allowances for selected Defence Attachés – ADF only)

Omit the subsection, substitute:
2. / The member is eligible for a special location allowanceof AUD 238.49a day. This allowance is payable on a fortnightly basis.
3. / For the purpose of the Military Rehabilitation and Compensation (Pay-related Allowances) Determination 2017, special location allowance means either of the following allowances.

a. / For the Defence Attaché Kabul – Defence attaché Kabul allowance.
b. / For the Defence Attaché Baghdad – Defence attaché Baghdad allowance.

Schedule2—Hardship location conditions of service

Defence Determination 2016/19, Conditions of service

1 Subsection 16.3A.3.2 (Additional recreation leave)

Omit the subsection, substitute:
2. / The number of additional recreation leave days a year member is entitled to is the greater of the following amounts that applies to the member.
a. / The number of days for the hardship location grade of the member's posting location overseas in the following table.
Item / Hardship location grade / Additional recreation leave days a year
1. / A / 0
2. / B / 0
3. / C / 8
4. / D / 9
5. / E / 10
6. / F / 10
b. / If the member's posting location overseas is Afghanistan or Iraq – 15 additional recreation leave days a year.

2 Annex 16.A (Hardship post conditions of service – member posted before 1July 2017)

Omit table item 1, substitute:
1. / Afghanistan / 12 / London (2) / Rome (1) / 3 / Yes / 15 / F

3 Annex 16.A (Hardship post conditions of service – member posted before 1July 2017)

Omit table item 13, substitute:
13. / Iraq / 12 / London (2) / Rome (1) / 3 / Yes / 15 / F

4 Annex 16.B (Hardship post conditions of service – member posted on or after 1July 2017)

Omit table item 1, substitute:
1. / Afghanistan / 12 / London (2) / Rome (1) / 3 / Yes / F

5 Annex 16.B (Hardship post conditions of service – member posted on or after 1July 2017)

Omit table item 17, substitute:
17. / Iraq / 12 / London (2) / Rome (1) / 3 / Yes / F

Schedule3—Hardship location

Defence Determination 2016/19, Conditions of service

1 Subsection 5.4.17.1 (Service in a remote location)

Omit from note a. "hardship post", substitute "hardship location".

2 Paragraph 5.8.6.2.b (War service leave and other leave)

Omit "hardship posts", substitute "hardship locations".

3

Section 12.1.3 (Supplementary conditions)

Omit the example.

Section 12.3.12 (Ordinary period of posting)

Omit the cross reference.

Subsection 13.1.3.2 (Member this Chapter does not apply to)

Omit from the note "hardship post", substitute "hardship location".

Subsection 15.3.2 (Member this Part applies to)

Omit from the note "hardship posts", substitute "hardship locations".

Subsection 15.3.38.2 (Additional travel when posting extended)

Omit "hardship post", substitute "hardship location".

Subsection 15.4.6.2 (Housing benefits)

Omit "hardship posting", substitute "hardship location".

Subsection 15.4.18.4 (Rent and utilities contribution)

Omit "hardship post", substitute "hardship location".

Paragraph 15.4.24.3.c (Substandard housing)

Omit "hardship allowance grading", substitute "hardship location grade".

Section 16.0.2 (Contents)

Omit from the entry for Annex 16.A "Hardship post", substitute "Hardship location".

Section 16.0.2 (Contents)

Omit from the entry for Annex 16.B "Hardship post", substitute "Hardship location".

Section 16.1.2 (Definitions)

Omit both cross references.

Section 16.1.3 (Member this Chapter applies to)

Omit the cross reference.

Subsection 16.1.7.1 (Basis for hardship package)

Omit the subsection, substitute:
1. / Hardship locations are graded on factors that indicate if a location is harder to live in than Australia. Each factor earns points that determine the hardship location grade. The hardship location grade determines the rate of hardship allowance. Not all grades attract payment of the allowance.

Section 16.2.2.2 (Member this Part applies to)

Omit "hardship posting location", substitute "hardship location".

Section 16.2.7.2 (Duty in another hardship location)

Omit "hardship grade", substitute "hardship location grade".

Section 16.2.7.3 (Duty in another hardship location)

Omit "hardship grade", substitute "hardship location grade".

Section 16.2A.7.2 (Duty in another hardship location)

Omit "hardship grade", substitute "hardship location grade".

Section 16.2A.7.3 (Duty in another hardship location)

Omit "hardship grade", substitute "hardship location grade".

Subsection 16.3.3.1 (Additional recreation leave)

Omit from the note "hardship post", substitute "hardship location".

Subsection 16.3.3.2 (Additional recreation leave)

Omit the cross reference.

Paragraph 16.4.3.a (Member this Part applies to)

Omit the cross reference.

Subsection 16.4.8.2 (Posting longer than the ordinary posting period)

Omit the cross reference.

Subsection 16.4.9.3 (Posting shorter than the ordinary posting period)

Omit the cross reference.

Annex 16.A (Hardship post conditions of service – member posted before 1July 2017), title

Omit from the title "Hardship post", substitute "Hardship location".

Annex 16.A (Hardship location conditions of service – member posted before 1July 2017), Part 1 title

Omit from the title "Hardship post", substitute "Hardship location".

Annex 16.A (Hardship location conditions of service – member posted before 1July 2017), Part 1 table

Omit from column 5 of the table "Hardship post", substitute "Hardship location".

Annex 16.A (Hardship location conditions of service – member posted before 1July 2017), Part 2 title

Omit from the title "Hardship posts", substitute "Hardship locations".

Annex 16.A (Hardship location conditions of service – member posted before 1July 2017), Part 2 table

Omit from the table "Hardship post", substitute "Hardship location".

Annex 16.B (Hardship post conditions of service – member posted on or after 1July 2017), title

Omit from the title "Hardship post", substitute "Hardship location".

Annex 16.B (Hardship location conditions of service – member posted on or after 1July 2017), table

Omit from column 4 of the table "Hardship post", substitute "Hardship location".

EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Hardship locations and special location allowance) Determination 2018 (No.13)

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, as modified by section 58B of the Defence Act.

Chapter 16 of the Principal Determination sets out provisions dealing with overseas hardship locations for members of the Australian Defence Force (ADF).

This Determination has the following two purposes.

Itamends the provisions for members posted to the Defence Attaché Kabul and Defence Attaché Baghdad positions. The changes provide additional benefits to assist in attracting and retaining members to the Attaché positions in Afghanistan and Iraq.
It standardises the use of the term 'hardship location'.

Section 1 of this Determination sets out the manner in which this Determination may be cited.

Section 2 provides that this instrument commences on 5 April 2018.

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 the Principal Determination.

Section 1 substitutes subsection 16.8.3.2 of the Principal Determination, which sets out the amount of special allowance payable to a member who is on long-term posting as the Defence Attaché Kabul or the Defence Attaché Baghdad. Section 1 makes the following changes.

Subsection 16.8.3.2 is being amended to include an attraction component of AUD68.49 a day to the special locationallowance, this increases the rate of special location allowance payable from AUD170.00 a day to AUD 238.49 a day. It is also being amended to state that the allowance is payable to the member on a fortnightly basis.
A new subsection 16.8.3.3 has been included which provides that for the purpose of the Military Rehabilitation and Compensation (Pay-related Allowances) Determination 2017, special location allowance means either the Defence attaché Baghdad allowance or the Defence attaché Kabul allowance. This ensures that the special location allowance is a 'pay-related allowance' for the purpose of subsection 11(1) of the Military Rehabilitation and Compensation Act 2004.

Schedule 2 amends the Principal Determination.

Section 1 amends subsection 16.3A.3.2 of the Principal Determination, which sets out the number of additional recreation leave days a member may be entitled to when performing duty at a hardship location. The subsection is being amended to provide that members posted to Afghanistan or Iraq are entitled to 15additional recreation leave days a year, previously these members were entitled to 10additional recreation leave days a year. This increase will enable the member to take the additional assisted leave travel that has been included for these locations under sections 4 and 5 of this Schedule.

Sections 2 and 3 amend Annex 16.A of the Principal Determination, which provides the hardship location conditions of service for members posted before 1 July 2017. The following changes have been made to the entries for Afghanistan and Iraq.

The number of regional assisted leave travel trips to London has been increased from one to two trips.
The leave interval has been amended to provide that assisted leave travel can be taken every three months. Previously this travel could be taken every four months. This change will enable to the member to take the additional assisted leave travel trip to London.
The number of additional leave days for these locations has also been increased from 10 days a year to 15 days a yearto enable the member to take the additional assisted leave travel that has been included for these locations.
Section 2 removes reference to Kabul from the location of Afghanistan to ensure that anyone who is posted to Afghanistan is eligible for the hardship conditions of service for that location.

Sections 4 and 5 amend Annex 16.B of the Principal Determination, which provides the hardship location conditions of service for members posted on or after 1 July 2017. The following changes have been made to the entries for Afghanistan and Iraq.

The number of regional assisted leave travel trips to London has been increased from one to two trips.
The leave interval has been amended to provide that assisted leave travel can be taken every three months. Previously this travel could be taken every four months. This change will enable to the member to take the additional assisted leave travel trip to London.
Section 4 removes reference to Kabul from the location of Afghanistan to ensure that any member posted to Afghanistan is eligible for the hardship conditions of service for that location.

Schedule 3 amends the Principal Determination.

Sections 1, 2, 5 to 12, 15 to 21 and 26 to 32 amend various sections in the Principal Determination to standardise the term 'hardship location'. There are currently a number of terms used that relate to overseas hardship locations, these terms are being standardised to remove possible confusion for members posted to an overseas hardship location.

Sections 3, 4, 13, 14 and 22 to 25 amend various sections in the Principal Determination to omit an example and a number of cross reference notes. The example and the cross references notes are administrative only and the removal does not affect the operation of the Principal Determination.

Consultation

Army has been consulted in the development of this Determination and confirm that the relevant funding is available for the additional provisions provided under this Determination. Navy, Air Force and International Policy Division were consulted in the development of this Determination. The rulemaker 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 (Hardship locations and special location allowance) Determination 2018 (No.13)

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 makes amendments to Defence Determination 2016/19, Conditions of service.

This Determination has the following two purposes.

It amends the provisions for members posted to the Defence Attaché Kabul and Defence Attaché Baghdad positions. The changes provide additional benefits to assist in attracting and retaining members to the Attaché positions in Afghanistan and Iraq.
It standardises the use of the term 'hardship location'.

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.

Right to an adequate standard of living

The protection of a person's right to an adequate standard of living engages Article 1 of the InternationalCovenant on Economic, Social and Cultural Rights. Article 11 recognises the right of everyone to anadequate standard of living for them and their family, including adequate food, clothing and housing, andto the continuous improvement of living conditions.

Legitimate objective: ADF members who are posted to the Defence Attaché positions in Afghanistan and Iraq may experience adverse living conditionsduring service. This could cause significant adverse effect on the lifestyle or welfare of members, as a result of the living conditions at the posting location, as compared with those inAustralia. Those hardship conditions can include but are not limited to climate, health care facilities,infrastructure and isolation.

Reasonable, necessary and proportionate: Hardship post conditions of service and the special location allowance provide additional benefits, beyond the normal overseas conditions of service, to assist the member to not suffer a disadvantage because of the requirement forthe member to live and work overseas. These benefits include an allowance, additional recreationleave and relieftravel to obtain a break from the environment or to access adequate health and shoppingfacilities.

Conclusion

This Determination is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Fiona Louise McSpeerin, Assistant Secretary People Policy and Employment Conditions