Defence Determination, Conditions of Service Amendment (Public Transport and School Transport

Defence Determination, Conditions of Service Amendment (Public transport and school transport costs) Determination 2018 (No.16)

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

Dated 19 April 2018

F L McSPEERIN

Assistant Secretary
People Policy and Employment Conditions
Defence People Group

Contents

1Name...... 2

2Commencement...... 2

3Authority...... 2

4Schedules...... 2

Schedule1—Amendments3

Defence Determination, Conditions of service 2016/193

1 Name

This instrument is Defence Determination, Conditions of Service Amendment (Public transport and school transport costs) Determination 2018 (No. 16)

2 Commencement

This instrument commences on 3 May 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Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

1

Schedule1—Public transport and school transport costs

Defence Determination 2016/19, Conditions of service

1

/

Section 15.3.7 (Public transport)

Omit the section, substitute:

15.3.7Public Transport

1. / A member may be reimbursed the excess costs of public transport if the member meets the following conditions.
a. / The member uses public transport to travel between their home and their normal place of duty.
b. / The member's public transport costs under paragraph a have exceeded AUD1,350.20 in a 12 month period commencing on 1 March.
2. / The excess cost the member is calculated using the following formula.
Where:
costs / is the member's public transport costs at the location. Multiply by the exchange rate to convert it into AUD.
Note: The exchange rate is the rate provided by the Department of Foreign Affairs and Trade for the payday prior to 1 March of the relevant year for the currency in which the member incurred the public transport cost.
days / is the number of days the member worked in the overseas location during the year. Do not count more than 215 days.

2

/

Section 15.6.11 (School transport costs)

Omit the section, substitute:

15.6.11School transport costs

1. / A member may be reimbursed the excess costs of school transport if the member meets the following conditions.
a. / The member's dependant, who is a child, travels to and from school by one of the following means.
i. / Public transport.
ii. / Transport contracted by the school, but not levied by the school.
b. / School transport costs in paragraph a have exceeded AUD 368.90 in a 12 month period commencing on 1 March.
2. / The excess cost of school transport is calculated using the following formula.
Where:
costs / is the member's claimable school transport costs at the location in Australian dollars.
Note: The exchange rate is the rate provided to Defence by the Department of Foreign Affairs and Trade for the payday prior to 1 March of the relevant year for the currency in which the member incurred the school transport costs.
days / is the number of days the member’s dependant attended school in the overseas location during the year. Do not count more than 155 days.
3. / For the purpose of subsection 2, claimable school transport costs are equal to the lesser of the following in AU Dollars.
a. / School transport costs that would be payable if the child attended a benchmark school.
b. / School transport costs paid by the member for the child.

1

EXPLANATORY STATEMENT

Defence Determination, Conditions of Service Amendment (Public transport and school transport costs) Determination 2018 (No. 16)

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 15 of the Principal Determination sets out provisions dealing with living and working on long-term posting overseas for members of the Australian Defence Force (ADF).

The purpose of this Determination is to:

• Provide the current figures used to calculate how much a member may be reimbursed for public transport costs at an overseas posting location when travelling to and from their normal place of duty.
• Provide the current figures which are to be used to calculate how much a member may be reimbursed for school transport costs at an overseas posting location when the member has a child who is adependant travelling to and from school.

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

Section 2 provides that this instrument commences on 3 May 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 Defence Determination 2016/19, Conditions of service

Section 1 omits and substitutes section 15.3.7 of the Principal Determination, which provided when a member may be reimbursed for public transport costs while at an overseas posting location, and how to calculate the reimbursement amount. The new section provides the following.

• Subsection 15.3.7.1 provides when a member is eligible to be reimbursed for excess public transport costs. The subsection states that a member may only claim a reimbursement when they have exceeded AUD 1,350.20 in public transport costs between their home and their normal place of duty in one calendar year. This figure is reviewed annually and is based on the cost of what a member would expect to pay over one calendar year, in Canberra, on public transport.
• Subsection 15.3.7.2 provides a formula for calculating the claimable excess transport costs eligible contribution amount for public transport at an overseas location.

The formula uses 215 days as the number of work days applicable to a member at an overseas location per annum. This number is based on the number of work days in a year less public holidays and 20 annual leave days.

The formula requires the cost of public transport in the overseas location to be converted to AUD for the purposes of calculating the reimbursement. The exchange rate which is to be used by a member to convert the figure, from the currency in which the cost was incurred to AUD, is available on the member's fortnightly payment summery, which is provided to the member by the Department of Foreign Affairs and Trade, for the payday prior to 1 March of the relevant year. Ifa situation arises where this rate is unavailable to the member, it will be provided by the Department of Defence directly. Specifics relating to the how a member can access this information will follow this subsection as guidance on the 'Defence Pay and Conditions' website.

Section 2 omits and substitutes section 15.6.11 of the Principal Determination, which provided when a member may be reimbursed for school transportcosts for adependantwho is achild, while at an overseas posting location, and how to calculate the reimbursement amount. The new section provides the following.

• Subsection 15.6.11.1 provides when a member has a dependant who is a child attending school, the member is eligible to be reimbursed for excess school transport costs. The subsection states that a member may only claim a reimbursement when they have exceeded AUD 368.90 in school transport costs in one calendar year. This figure is reviewed annually and is based on the cost of what a member would expect to pay over one calendar year, in Canberra, on school transport.
• Subsection 15.6.11.2 provides a formula for calculating the claimable excess transport costs for school transport at an overseas location.

The formula uses 155 days as the number of school days applicable for a child attending school at an overseas location per annum. This number has decreased due to the number of school days in a year, less public holidays.

The formula requires the cost of school transport in the overseas location to be converted to AUD for the purposes of calculating the reimbursement. The exchange rate which is to be used by a member to convert the figure, from the currency in which the cost was incurred to AUD, is available on the member's fortnightly payment summery, which is provided to the member by the Department of Foreign Affairs and Trade, for the payday prior to 1 March of the relevant year. If a situation arises where this rate is unavailable to the member, it will be provided by the Department of Defence directly. Specifics relating to the how a member can access this information will follow this subsection as guidance on the 'Defence Pay and Conditions' website.

• Subsection 15.6.11.3 provides that when a member is claiming school transport costs they may claim the lesser of the following, the costs that would be payable if the member's child was attending a benchmark school, or the costs that have been paid by the member for the child.

Consultation

The Navy, Army and Air Force 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 (Public transport and school transport costs) Determination 2018 (No. 16)

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 Determination has the following two purposes.

• Provide the current figures used to calculate how much a member may be reimbursed for public transport costs when travelling to and from their normal place of duty at an overseas posting location.
• Provide the current figures which are to be used to calculate how much a member may be reimbursed for school transport costs when the member has a child who is a dependant travelling to and from school at an overseas posting 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.

Legitimate objective: This Determination adjusts member contribution rates towards public transport costs and school transport costs, for members posted overseas.

Reasonable, necessary and proportionate: A policy principle underpinning many aspects of ADF member overseas conditions is that members posted to locations that are more expensive to live in than Australia should not be disadvantaged by those expensive local conditions and the Commonwealth should provide a subsidy to the member. Transport cost benefits are examples of the application of this policy.

Members in Australia are not ordinarily reimbursed the costs of travelling to and from work, or the costs of their children travelling to and from school. It is a long-standing industrial principle that these are private expenses. The public transport and school transport benefits do pay for these expenses, but the member is required to make a contribution. The contribution for public transport costs and school transport costs is based on the Australian public transport cost (with Canberra's costs chosen as a benchmark, as there is some fluctuation between States).

The requirements on members to contribute towards these benefits ensure that they do not receive a 'windfall gain' by being posted to an expensive overseas location, but have approximate parity with their working conditions in Australia.

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