Defence Determination, Conditions of service Amendment (Miscellaneous and salary non-reduction) Determination 2019 (No. 25)

This Determination amends the Defence Determination 2016/19, Conditions of service, by making a set of textual, definitional and transitional changes. It is made under section 58B of the Defence Act 1903 (see "Authority") and commences on 5 September 2019 (see "Commencement"). The instrument comprises two Schedules.

Schedule 1 contains multiple "miscellaneous amendments" that replace, omit or insert text in specific provisions of the Conditions of service Determination. Key mechanical changes include:

• Substitution of subsection 3.2.58.2 (Movements between Reserve service and continuous full-time service) so that "For a period of continuous full-time service the member is to be paid the non-reduction supplement at the same rate payable under section 3.2.56."
• Removal of a number of annexes, examples and "see notes", including Annex 7.G and various examples and explanatory notes across housing and other parts (items removing Annex 7.G, examples under 7.8, and see notes under 5.4.31.3 and 7.8.23.2).
• Replacement of the recreation leave rule in subsection 5.4.31.1 to read that "A member must not be granted recreation leave if they do not hold enough leave credit for the period of the absence."
• Insertion of a definition for "Contribution" in subsection 7.1.14 as "The amount a member pays towards the cost of benefits provided for housing, meals and utilities."
• Recast of the fortnightly rent contribution formula in subsection 7.7.14.3 to specify that the rent contribution is the sum of (a) contribution for the member's rank group under Annex 7.D Part 2 and (b) the difference between applicable rent ceiling and the rent of the home.
• Substantive textual changes on accommodation and travel allowances, for example rewording of meal and incidental maximum daily limits in subsection 9.5.17.2 and a corrected wording for public transport excess cost calculation in subsection 15.3.7.2.

Schedule 2 adjusts one salary non-reduction entry and provides a transitional payment mechanism:

• It amends Annex 3.2.C (Salary non-reduction - Flight test engineers) by changing, for Air Force Pay grade 7, the date "13 August 2019" to "13 August 2020" (deferring the relevant cut-off or end-date by one year).
• It contains a transitional provision that creates an entitlement to a retrospective payment for a narrowly defined class of Air Force members who were on a salary non-reduction period on 13 August 2013, were in Air Force Pay grade 7, and "would have been eligible for the salary non-reduction had this Schedule commenced on 14 August 2019." The member is eligible for a payment equal to the difference between the salary paid to them between 14 August 2019 and the commencement of this Determination and the salary they would have been paid had the Determination commenced on 14 August 2019 until commencement.

Administratively, the Determination is made by the Assistant Secretary, People Policy and Employment Conditions, Defence People Group (signed 26 August 2019). Each Schedule amends the earlier Conditions of service Determination "as set out in the applicable items" and those items "have effect according to their terms" (see Schedule mechanism in clause 4).

The instrument therefore changes entitlement texts, definitions and examples; redefines benefit calculation formulas for housing contributions; delays the expiry (or alters the treatment) of an element of salary non-reduction for a class of Air Force personnel; and authorises a narrow retrospective payment. It does not itself set out any penalties or create new offence provisions.

The Determination operates through a handful of recurring legal and administrative concepts embedded in the Defence Conditions of service text. Those concepts, as modified, are:

• Non-reduction supplement and salary non-reduction mechanics: The Determination substitutes subsection 3.2.58.2 to state explicitly that during a period of continuous full-time service "the member is to be paid the non-reduction supplement at the same rate payable under section 3.2.56." Schedule 2 further amends Annex 3.2.C to change a relevant date for Air Force Pay grade 7 from 13 August 2019 to 13 August 2020, and creates a narrowly drawn transitional payment right (Schedule 2 items 1 and 2).

• Leave accounting rule: The substitute subsection 5.4.31.1 imposes a bright-line administrative duty , "A member must not be granted recreation leave if they do not hold enough leave credit for the period of the absence." This replaces prior text and makes available leave strictly conditional on available leave credit.

• Housing assistance, member contribution and rent ceiling mechanics: Several deletions and substitutions alter the textual apparatus around housing. A new definition for "Contribution" is inserted in subsection 7.1.14 as "The amount a member pays towards the cost of benefits provided for housing, meals and utilities." The fortnightly rent contribution rule in subsection 7.7.14.3 is replaced with a two-part sum: (a) the rank-group contribution from Annex 7.D Part 2; and (b) the difference between rent ceiling and actual rent. Multiple annexes and worked examples that previously illustrated how rent ceilings and member contributions operate are omitted (e.g. Annex 7.G and related examples and "see notes").

• Administrative discretion for classification of members with dependants (unaccompanied): Subsection 8.3.6.7 is substituted to authorise the Chief of the Defence Force (CDF) to approve a member as a "member with dependants (unaccompanied)" "when the member has not been provided removal benefits for the member's dependants to move to a personal location." That is an express discretionary approval power.

• Travel subsistence rules: Subsection 9.5.17.2 is reworded to specify daily maximum limits for meals and incidentals by reference to columns in Annex 9.5.A Part 4, and 15.3.7.2 corrects the phrasing for calculation of public transport excess cost.

• Removal of explanatory material: The Determination removes several examples, annexes and "see note" markers (items throughout Schedule 1). Those deletions reduce the presence of worked examples and explicit cross-references in the Conditions text and replace some sections with concise formulations.

This Determination affects subsets of Defence personnel and Defence administrators according to the provisions it alters. The instrument itself is framed as amendments to the Conditions of service Determination; it does not create obligations on non-members or non-Defence entities. The principal affected groups identifiable in the instrument are:

• Members transitioning from Reserve service to continuous full-time service, and other members on a "non-reduction" salary regime. The new subsection 3.2.58.2 (Schedule 1 item 1) requires that "For a period of continuous full-time service the member is to be paid the non-reduction supplement at the same rate payable under section 3.2.56." Members who were subject to the salary non-reduction provisions will see the textual rule clarified.

• Air Force flight test engineers in Air Force Pay grade 7, and a defined sub-class of Air Force members who were on a salary non-reduction period on 13 August 2013. Schedule 2 explicitly amends Annex 3.2.C for Air Force Pay grade 7 by changing a date to 13 August 2020 (Schedule 2 item 1) and establishes a transitional entitlement that only applies to members satisfying a three-part eligibility test: (a) on a salary non-reduction period under the specific table item on 13 August 2013, (b) in Air Force Pay grade 7, and (c) would have been eligible had the Schedule commenced on 14 August 2019 (Schedule 2 item 2.1).

• Members seeking recreation leave: The replacement of subsection 5.4.31.1 (Schedule 1 item 4) affects every member subject to that leave regime by making grant of recreation leave contingent on sufficient leave credit.

• Members who occupy Defence-provided or contracted housing, or who receive housing-related benefits: Insertion of the "Contribution" definition and substitution of the fortnightly rent contribution calculation (Schedule 1 items 8 and 11) directly affect members who accept accommodation that may be above their rent ceiling, members who pay contributions for housing/meals/utilities, and the administrators who calculate such contributions. Removal of Annex 7.G and other examples affects the same cohort because the practical worked examples previously available are deleted.

• Members with dependants and those potentially classified as "member with dependants (unaccompanied)": The substituted subsection 8.3.6.7 (Schedule 1 item 17) confers a role on the CDF in approving such classification where removal benefits for dependants to move to a personal location have not been provided. Members in that situation will be affected by the CDF's exercise of discretion.

The Determination creates, clarifies and removes specific duties and entitlements within the Conditions of service text. The operative duties and rights, as derived from the amended provisions, include the following concrete items:

• Duty to pay non-reduction supplement during continuous full-time service: Under the new text of subsection 3.2.58.2, a member in a period of continuous full-time service "is to be paid the non-reduction supplement at the same rate payable under section 3.2.56." This places a duty on pay administrators to ensure the non-reduction supplement is paid at that rate during continuous full-time service.

• Prohibition on granting recreation leave without credit: The substituted subsection 5.4.31.1 establishes a specific administrative prohibition: "A member must not be granted recreation leave if they do not hold enough leave credit for the period of the absence." This is a mandatory grant condition; the duty falls on leave approvers to check leave credits before approving leave.

• Definition and scope of member "Contribution": The new definition inserted into subsection 7.1.14 describes "Contribution" as "The amount a member pays towards the cost of benefits provided for housing, meals and utilities." That definition both identifies what counts as a contribution and bounds member liability for specified benefits.

• Calculation of fortnightly rent contribution when member accepts accommodation above the rent ceiling: The replacement text in subsection 7.7.14.3 requires the fortnightly rent contribution be the sum of two amounts , the contribution for the rank group per Annex 7.D Part 2, and the rent difference between applicable rent ceiling and the rent of the home. This sets an explicit formula payable by the member.

• CDF discretion to approve member with dependants (unaccompanied): The substituted subsection 8.3.6.7 states "The CDF may approve a member as a member with dependants (unaccompanied) when the member has not been provided removal benefits for the member's dependants to move to a personal location." That formulates a specific administrative right exercised by the CDF; members have an entitlement only to the extent the CDF grants approval under this discretionary clause.

• Maximum daily limits for meals and incidentals: Subsection 9.5.17.2 now specifies that the maximums are "the sum of rates for each meal period specified for the location in Annex 9.5.A Part 4, columns B, C and D for each day" for meals, and "the rate in Annex 9.5.A Part 4, column E" for incidentals. That places a duty on administrators to apply Annex 9.5.A Part 4 columns B-E when calculating entitlements for journeys.

The instrument does not create new criminal offences, civil penalties or express sanctions of the kind that would be enforced by courts or tribunals. The Determination is an administrative instrument that amends the Conditions of service Determination; it operates through duties placed on Defence decision-makers and payroll/HR administrators rather than by attaching statutory penalties in the text of the instrument.

Enforcement mechanisms and practical consequences therefore arise from administrative processes and entitlements rather than through newly inserted penalty provisions. Concretely:

• Administrative enforcement through pay and leave processes: The substituted leave provision (subsection 5.4.31.1) creates a mandatory prohibition on granting recreation leave without sufficient leave credit. The practical enforcement mechanism will be leave-approval procedures, payroll and HR checks that must be implemented by Defence administrators to prevent an unauthorised grant. Similarly, the pay-related substitutions (subsection 3.2.58.2; Annex 3.2.C date change and transitional payment) require payroll to apply the amended rates and to process retrospective payments for eligible members where applicable. These are enforced through internal payroll corrections and benefit payments.

• Discretion exercised by senior officials: The substituted subsection 8.3.6.7 vests authority in the CDF to approve a member as "member with dependants (unaccompanied)" in a specific scenario. Enforcement or remedy in this context is the exercise or non-exercise of this administrative discretion by the CDF; the Determination does not provide a statutory review pathway within its text. Any challenge to the exercise of that discretion would therefore sit within administrative law principles, but the Determination itself does not set out appeal mechanisms.

• No express sanctions in the text: Nowhere in this Determination are civil penalties, fines, or criminal sanctions inserted or modified. The instrument modifies entitlement wording, annex references and calculation methods and provides a formula for a retrospective payment. Where compliance fails (for example, a member is paid incorrectly), the immediate remedial route is administrative correction and payment adjustment rather than a penal sanction set out in this instrument.

• Implementation obligation by senior official: The instrument is made under section 58B of the Defence Act 1903 and executed by the Assistant Secretary, People Policy and Employment Conditions. That places internal administrative responsibility for giving effect to the Determination within Defence People Group.

This Determination is an amending instrument that operates within the hierarchy set by the Defence Act 1903 and the Conditions of service Determination it amends. Its interaction with other laws, as apparent from the text, is limited and specific:

• Authority under the Defence Act 1903: The Determination is expressly made under section 58B of the Defence Act 1903 (see clause 3, "Authority"). That provides the legal mechanism by which the Assistant Secretary and Defence People Group can make or amend conditions of service. The Determination therefore functions as a subordinate instrument under the Defence Act; it does not create rights or obligations that are independent of the statutory framework that authorises Defence determinations.

• Amendment of an existing Defence Determination: The instrument amends Defence Determination 2016/19, Conditions of service (clause 4 and both Schedules). The changes are textual substitutions, insertions and deletions within that Determination. The amended text must therefore be read together with the remainder of the Conditions of service Determination which remains in force except where expressly altered.

• Relationship to contract with service providers: The instrument’s substituted definition of "normal accommodation stock" in section 9.5.15 now defines it as "accommodation that is made available through the contracted service provider for the period required." This explicitly references contracted service providers when defining a class of accommodation. While the Determination does not alter standing contract terms, it ties members' accommodation entitlements and the classification of accommodation stock to what the contracted provider "makes available." That creates a point of operational interaction between the Conditions text and the practical performance of Defence accommodation contracts.

• Internal administrative law interface: Several provisions confer or remove administrative discretions and working rules (for example the CDF approval in subsection 8.3.6.7). Although the Determination does not set out judicial review or appeal mechanisms, decisions made under these amended provisions would, in principle, fall within the scope of general administrative law and review available under the Judiciary and Administrative Review framework, to the extent applicable. The instrument itself does not alter outside legal rights or remedies, and it does not purport to oust review.

• Interaction with payroll and superannuation or taxation: Schedule 2’s transitional payment and the non-reduction supplement changes are monetary and will interact operationally with Defence payroll systems, and by extension with taxation and superannuation regimes applicable to salary payments. The Determination does not address tax or superannuation consequences; those implications will be dealt with under the ordinary operation of taxation and superannuation law and payroll processes.

The instrument itself records its immediate provenance. The procedural and textual amendment history within the text includes:

• Instrument identity and execution: The instrument is titled "Defence Determination, Conditions of service Amendment (Miscellaneous and salary non-reduction) Determination 2019 (No. 25)" and is dated 26 August 2019, signed by Fiona Louise McSpeerin, Assistant Secretary, People Policy and Employment Conditions, Defence People Group (top of the instrument). The instrument states it is made under section 58B of the Defence Act 1903 (clause 3).

• Commencement: The instrument commences on 5 September 2019 (clause 2). That is the operative commencement for every amendment stated in the Schedules, unless an item expressly provides otherwise (no other commencement dates appear in the text).

• Scope of amendment: Clause 4 ("Schedules") sets out 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." The two Schedules both specify amendments to "Defence Determination 2016/19, Conditions of service."

• Schedule 1 (Miscellaneous amendments) contains 22 enumerated items that either omit, substitute, insert or correct text across chapters, sections, subsections and annexes of the Conditions of service Determination. These range from single-word corrections (for example, item 9 replaces "form" with "from") to the omission of whole annexes and examples (for example, item 16: "Annex 7.G (Example of how the rent ceiling and member's contribution works) , Omit the Annex.") and to replacement of subsections with new mandatory rules (for example item 4: replacement of subsection 5.4.31.1 on recreation leave).

• Schedule 2 (Salary non-reduction amendment) contains:

  • Item 1, amending Annex 3.2.C: "From Air Force Pay grade 7 omit '13 August 2019', substitute '13 August 2020'." This shifts the date occurring in that Annex.
  • Item 2, a transitional provision composed of a two-part substructure setting eligibility criteria and a payment method. It is explicit in scope and calculation: it applies to members who meet all three listed criteria (2.1 a-c) and entitles the member to payment equal to the difference between the salary actually paid between 14 August 2019 and commencement and the salary they would have been paid had the Schedule commenced on 14 August 2019 until commencement (2.2 a-b).

The instrument itself does not include any statement about litigation, court decisions, or judicial interpretation of the provisions it amends. It contains no references to cases or adjudicative outcomes, and no provision in the text cites any judicial authority or records any legal challenge.

Consequently, within the four corners of this Determination:

• There is no litigation history recorded.
• There are no references to judicial review outcomes or proceedings, nor to settlements or determinations that have been litigated.
• The Determination does not provide a remedial or appeal pathway specific to the new or amended administrative discretions and entitlements it creates or modifies; it operates as an administrative amendment to the Conditions of service Determination.

That said, the amended provisions change administrative rights and duties (for example, the strict leave credit prohibition, the CDF discretion for dependent classification, and the retroactive payment). Those types of changes are the kinds of administrative acts that, in other contexts, may generate disputes about application, interpretation or the exercise of discretion. However, nothing in this Determination records any existing litigation nor indicates that the changes are in response to, or the subject of, litigation.

For researchers or practitioners seeking potential litigation risk or precedent, the instrument supplies only the text changes and the new rules. Any litigation history relating to disputes about the meaning, exercise, or implementation of these amended provisions would need to be ascertained from court records and decisions external to this instrument; the Determination itself neither adduces nor summarises such material.

The Determination contains several changes that have operational or interpretive consequences that practitioners and administrators should note. These are concrete points drawn from the amended text rather than policy judgments.

• Removal of worked examples and annexes reduces in-text guidance: Schedule 1 deletes Annex 7.G and multiple examples and "see notes" across housing and leave provisions. Where those annexes previously illustrated calculations and the effect of rent ceilings and member contributions, their deletion removes in-determination worked guidance. The practical effect is that administrators must apply the new formulaic text (for example in subsection 7.7.14.3) without the removed worked examples. This can increase reliance on administrative interpretation or separate guidance documents outside the instrument.

• Bright-line prohibition on granting recreation leave without credit: The new text in subsection 5.4.31.1 states "A member must not be granted recreation leave if they do not hold enough leave credit for the period of the absence." That is an explicit non-discretionary rule for leave approvers. Administrators who previously relied on latitude to grant leave in deficit will need to adjust approvals processes and systems to refuse leave when credits are insufficient.

• Narrow scope of the transitional payment in Schedule 2: The retrospective payment is narrowly circumscribed. It applies only to members meeting three conditions (on a salary non-reduction period on 13 August 2013; in Air Force Pay grade 7; and who "would have been eligible" had the Schedule commenced on 14 August 2019). The payment period to be compared is explicitly the interval "between 14 August 2019 and the commencement of this Determination." Given the Determination's commencement date is 5 September 2019, the retrospective calculation covers that specific interval only, not any longer back-dated period. Eligible members therefore have a narrow window for compensation.

• Date shift in Annex 3.2.C: Changing "13 August 2019" to "13 August 2020" for Air Force Pay grade 7 deferentially extends the operation of a salary non-reduction element by one year for that pay grade. The administrative effect is to alter future payroll rate determinations and possibly cumulative payroll calculations for those in that grade. Payroll systems should be updated to reflect the new date and treatment.

• Definition linking accommodation to contracted provider availability: The substituted section 9.5.15 defines "normal accommodation stock" as "accommodation that is made available through the contracted service provider for the period required." That places a functional dependency on what a private contracted service provider "makes available." Where contracted providers alter supply or availability, the classification of "normal accommodation stock" under the Conditions will be affected. Administrators should ensure they have contemporaneous knowledge of contracted provider availability to apply the definition.

Compliance with this Determination is primarily an internal administrative exercise for Defence decision-makers, payroll, HR and travel administrators. The following concrete steps, each grounded in the specific amended text, outline required or prudent actions.

1. Record the commencement and apply amendments from that date:

   • The Determination commences on 5 September 2019 (clause 2). All amended text in Schedule 1 and Schedule 2 takes effect from that date. Update policy registers, internal directive schedules and change logs to reflect the commencement date.

2. Update payroll systems for non-reduction supplement and Annex 3.2.C date change:

   • Ensure payroll applies the substituted subsection 3.2.58.2 so that members in a period of continuous full-time service receive the non-reduction supplement at the rate under section 3.2.56.
   • Modify Annex 3.2.C treatment for Air Force Pay grade 7 to reflect the revised date "13 August 2020" (Schedule 2 item 1). Coordinate with payroll to ensure the date change is reflected in rate and termination logic.

3. Process transitional payments where eligible:

   • Identify members who satisfy the three-part test in Schedule 2 item 2.1 (salary non-reduction on 13 August 2013; in Air Force Pay grade 7; would have been eligible had the Schedule commenced on 14 August 2019).
   • For each eligible member, calculate the payment as the difference between (a) salary actually paid between 14 August 2019 and commencement (5 September 2019) and (b) the salary that would have been paid had this Determination commenced on 14 August 2019 until commencement. Make the payment and document the calculation and decision trail.

4. Enforce the new recreation leave prohibition:

   • Modify leave-approval workflows and leave management systems so that recreation leave cannot be approved unless the member's leave credit is sufficient for the requested period. Train approvers and build system checks to block grants against insufficient credit, implementing the rule in substituted subsection 5.4.31.1.

5. Apply the new "Contribution" definition and rent contribution formula:

   • Adopt the new definition of "Contribution" in subsection 7.1.14 for all processes that calculate member liabilities for housing, meals and utilities.