82DDeterminations

##### 82D Determinations (1) Subject to subsection (2), the Board may, by instrument in writing, determine the terms and conditions of employment (including employment overseas) of officers and employees. (2) Subject to paragraph (3)(b), where a determination under this section is inconsistent with: (a) a provision of this Act or the regulations; (b) a provision of, or a determination under, the Remuneration Tribunal Act 1973; or (c) a provision of another Act; (whether enacted or made before or after the commencement of this Division), the provision or determination referred to in paragraph (a), (b) or (c) prevails and the determination under this section is, to the extent of the inconsistency, of no effect. (3) A determination: (a) shall not be taken to be inconsistent with section 97 by reason only that it makes provision for or in relation to a matter for or in relation to which regulations may be made under that section; and (b) to the extent that it makes provision for or in relation to terms or conditions of employment overseas, has effect notwithstanding anything contained in the regulations. (3A) A determination that makes provision for or in relation to the matters referred to in subparagraph (4)(a)(xii), (xiii) or (xiv) shall not be taken to be inconsistent with a determination under subsection 7(3) of the Remuneration Tribunals Act 1973. (4) Without limiting the generality of subsection (1), a determination: (a) may make provision for and in relation to: (i) the salaries and allowances of officers and employees; (ii) the hours of attendance of officers and employees, and the recording of attendances; (iii) the performance of overtime; (iv) the reckoning as service in the Service, for specified purposes of this Act or of any other Act, of the whole or part of any period of service performed in specified employment, or of any period of specified full‑time training undertaken, by persons before they become officers or employees; (iva) the reckoning as service in the Service, for specified purposes of this Act or any other Act other than the Superannuation Act 1976 or the Superannuation Act 1990, of the period between the resignation of an officer or employee as mentioned in subparagraph 47C(1)(a)(i) or 82B(1)(a)(i) and the re‑appointment or employment of the officer or employee under subsection 47C(1) or 82B(1), as the case may be; (v) leave of absence of officers and employees, including provision for and in relation to: (A) the requiring of an officer or employee, in specified circumstances, to absent himself from duty during a period of leave of absence for recreation or on account of illness that has been, or is, under the determination, to be deemed to have been, granted to him; and (B) the circumstances in which, and the persons to whom, payment in lieu of leave of absence for recreation may be made; (vi) the forfeiture of salary of officers and employees in respect of periods of absence not authorized by this Act, the regulations or the determinations; (via) the payment of the whole or part of an officer’s salary during a period while the officer is suspended, imprisoned or in custody; (vii) the courses of study, instruction or training for which recognition may be given for the purposes of this Act, the regulations or a determination, including provision for and in relation to the reimbursement, or partial reimbursement, of fees or expenses paid in connection with such courses; (viia) the rent to be paid by officers and employees occupying, for residential purposes, premises owned or occupied by the Commonwealth; (viii) the provision of residential accommodation for officers and employees performing duties overseas and for persons who are, for the purposes of the determination, dependants of such officers and employees, and the payment of allowances to such dependants; (ix) the welfare of officers and employees, including provision in accordance with which payments may be made to officers, employees and other persons in connection with the welfare of officers and employees; (x) the payment of expenses in special circumstances arising in relation to the death of a person who is or has been an officer or employee; (xi) in the case of an officer who commenced duties as an officer before 26 October 1966 and has continued in the Service since so commencing duties—the reduction of a period or periods of leave of absence for recreation for which the officer would otherwise become eligible after the date on which the determination takes effect by a period or periods ascertained in accordance with a method specified in the determination, being a period or periods that the Board considers appropriate having regard to the periods of leave of absence for recreation for which the officer became eligible during the years 1966, 1967 and 1968; (xii) the provision of benefits to officers whose salary would, but for the determination, be reduced by reason of action taken under Division 8A, 8B or 8C of Part III or to persons who cease to be officers or cease to perform duties in the Service by reason of action taken, or retirement in accordance with, a provision of one of those Divisions; and (xiv) the provision of benefits (including benefits by way of additional salary and allowances for such period as is specified in the determination) to an officer who holds an office (in this subparagraph referred to as the relevant office) of the kind referred to in paragraph (a) of the definition of office of Secretary in subsection 7(1) where: (A) at some time before being appointed to the relevant office, the officer held another office of the kind referred to in paragraph (a) of the definition of office of Secretary in subsection 7(1), the salary in respect of which is higher than the salary in respect of the relevant office; or (B) the salary in respect of the relevant office would, but for the determination, be reduced during the period during which the officer holds the relevant office; (b) may specify terms and conditions subject to which leave of absence for recreation or on account of illness may be granted, including terms and conditions: (i) having effect after the time at which leave of absence commences; and (ii) as to the inclusion of the whole or part of specified allowances in salary for the purposes of any payment in respect of, or in lieu of, leave of absence for recreation, or of any payment in respect of leave of absence on account of illness; and (c) may specify terms and conditions subject to which leave of absence, or leave included in a specified class of leave of absence, not being leave of absence for recreation or on account of illness, may be granted to an officer or employee, including terms and conditions: (i) as to the remuneration (if any) payable to him during the period of the leave; (ii) for the reduction of a recreation leave credit that would otherwise subsequently accrue to him; (iii) as to the purposes (if any) of this Act or of any other Act for which the period of the leave is to form part of his period of service or employment; (iv) by virtue of which, where a period of leave granted to him forms part of his period of service or employment under this Act for the purposes of leave of absence for recreation or on account of illness, deductions may be made from his recreation leave credit or sick leave credits, as the case requires, in respect of any periods of leave in the nature of leave of absence for recreation or on account of illness, as the case may be: (A) granted to him; or (B) in lieu of the grant of which a payment has been made to him; otherwise than under this Act, in respect of other service or employment during the period, or a part of the period, during which he was absent from duty in the Service on leave of absence; and (v) in the case of an officer—as to the declaration of his office to be vacant. (5) For the purposes of a determination with respect to employment overseas, an officer or employee who: (a) is proceeding from Australia to perform duties overseas; (b) is proceeding to Australia after having performed duties overseas; or (c) is proceeding from a place overseas to perform duties at another place overseas; shall, while he is so proceeding, be deemed to be performing duties overseas. (6) Determinations may be made either generally or with respect to a particular case or a particular class of cases. (7) Without limiting the generality of subsection (1), (2) and (4), the terms and conditions of employment of officers or employees determined under subsection (1): (a) may have regard to the service of officers or employees, as the case may be, in the Service before or after the making of the determination; and (b) may, in the case of terms and conditions with respect to leave of absence, have regard to leave of absence granted before the making of the determination. (8) A determination takes effect: (a) on the day on which it is made; or (b) where another day (which may be a day earlier than the day on which it is made) is specified for the purpose in the determination, on the day so specified. (9) A determination shall not be expressed to take effect on a day earlier than the day on which it is made in any case where, if the determination so took effect: (a) the rights of a person (other than the Commonwealth) existing immediately before the last‑mentioned day would be affected in a manner prejudicial to that person; or (b) liabilities would be imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done before that last‑mentioned day; and where, in a determination, any provision is made in contravention of this subsection, that provision shall be void and of no effect. (10) The determinations made in each calendar year (including determinations amending or revoking other determinations) shall, subject to subsection (10A), be numbered in regular arithmetical series, beginning with the number 1, as nearly as possible in the order in which they are made. (10A) The Board may, if it thinks fit, number determinations relating to different subject matters in separate regular arithmetical series, each beginning with the number 1. (11) A determination may, without prejudice to any other manner of citation, be cited by reference to its number and the calendar year in which it was made. (12) The Board shall cause to be published in the Gazette, in respect of each determination, notice of: (a) the fact that the determination has been made; and (b) the place or places where copies of the determination can be obtained.