Defence Determination 2012/68, Reserve employer support payments
I, DAVID FEENEY, Parliamentary Secretary for Defence make this Determination under section 58B of the Defence Act 1903.Dated 14 December 2012
D FEENEY
Parliamentary Secretary
PAGE INTENTIONALLY LEFT BLANK
Part 1 Preliminary
Division 1: Operation of this Determination
1Citation
2Commencement and sunset
3Repeal, saving and transitional
1Citation
1.1 / This Determination is Defence Determination 2012/68, Reserve employer support payments.1.2 / This Determination may also be cited as Defence Determination 2012/68.
2Commencement and sunset
2.1 / This Determination commences on 1 January 2013.2.2 / Unless this sunset is amended, employer support payment is not payable in relation to a week of claim period that occurs after 30 June 2014.
3Repeal, saving and transitional
3.1 / On the day this Determination commences, Defence (Employer Support) Determination 2005, as amended, is repealed.3.2 / In this section:
commencement day means 1 January 2013.
former Determination means Defence (Employer Support) Determination 2005, as amended and in force immediately before the commencement day.
new Determination means Defence Determination 2012/68, Defence (Reserve employer support payments), which commences on 1 January 2013.
3.3 / If, before the commencement day, a person complied with conditions for an entitlement or contribution under the former Determination:
a. / the person is taken to comply with the eligibility conditions set out in the new Determination, as in force on or after the commencement day, in order to qualify for an entitlement or incur an obligation in relation to a contribution for the corresponding allowance or reimbursement under the new Determination; and
b. / any related approval, authority, instruction or direction is taken to have been given, issued or granted under, and for the purposes of, the new Determination.
3.4 / For the purpose of continuity of eligibility, if in a provision of the former Determination, a person was authorised to exercise a power or a function, a reference to a decision-maker in the new Determination as in force on or after the commencement day, in relation to a similar power or function, is taken to include a reference to the person previously authorised to exercise the power or function.
3.5 / Nothing in this section:
a. / is taken to preserve or maintain after the commencement day the monetary amount or value of a person’s entitlements or liabilities applicable to the person as the result of the person’s eligibility under the former Determination before the commencement day, and, with effect from that day, the monetary amount or value of those entitlements or liabilities is provided for by the new Determination, as in force on or after that day, to the extent that it applies to the person; or
b. / is taken to preserve or maintain after the commencement day a person’s entitlements.
Division 2: Definitions
4Definitions
4Definitions
The terms in the table are defined for the purpose of this Determination.Term / Definition
absent on defence service / in relation to a member, means that the member is:
a. travelling, by the most direct and efficient means, to or from his or her residence to or from the place at which he or she is required to report for defence service; or
b. rendering defence service.
Act / means the Defence Act 1903.
AWOTE / means for the 12 months commencing on 1 July in any year — the amount equivalent to the average weekly full-time adult ordinary time earnings for Australia, using the Trend Estimates for February as published by the Australian Bureau of Statistics.
claim period / means a period:
a. in which a member is absent on defence service; and
b. in relation to which a claim for the employer support payment is made.
commission agent / has the same meaning as in section 7 of the DRSP Act.
Commonwealth authority / has the same meaning as in section 4 of the Commonwealth Authorities and Companies Act 1997.
Commonwealth company / has the same meaning as in section 4 of the Commonwealth Authorities and Companies Act 1997.
Commonwealth Department / means a Department within the meaning of section 7 of the Public Service Act 1999.
continuous defence service / means a period of defence service of 5 or more continuous days (whether or not those days include 1 or more public holidays in the place in which the defence service is being undertaken). This period also includes time spent travelling, by the most direct and efficient means, to and from the place of continuous defence service.
contractor / means a person who contracts to perform work for another person under a contract for services (other than as an employee).
Note: This is the same meaning as in section 7 of the DRSP Act.
controlling interest / has the meaning given by section 10.
day / in relation to defence service, means a whole day of defence service, and also includes:
a. a part of the day at the beginning of a period of a member’s defence service, if:
i. the part is at least 6 hours and includes any period of travelling time to the place where the member is required to report for defence service; and
ii. if the part of the day includes a period of travelling time — the period of travelling time is not less than 3 hours, and is a period during which the member is travelling, by the most direct and efficient means, from his or her residence to the place where he or she is required to report for defence service; and
b. a part of the day at the end of a period of defence service, if:
i. the part is at least 6 hours and includes any period of travelling time to the member's residence; and
ii. if the part of the day includes a period of travelling time — the period of travelling time is not less than 3 hours, and is a period during which the member is travelling, by the most direct and efficient means, from the place where he or she is required to report for defence service to his or her residence; or
c. a part of a day at the end of a period of defence service, if:
i. the part of the day includes defence service for less than 6 hours; and
ii. the part of the day includes a period used for rest purposes; and
iii. the member has been authorised, in writing, to cease duty early in order to provide recovery time.
decision-maker / means a Service Chief or other person in accordance with section 5.
de facto partner / has the meaning given by section 2D of the Acts Interpretation Act 1901.
defence service / means service (including training) in a part of the Reserves; and
includes voluntary unpaid service only if the attendance or service has been authorised in writing, before it is undertaken, by:
a. the commanding officer of the member; or
b. the branch head of the member.
DRSP Act / means the Defence Reserve Service (Protection) Act 2001.
eligible service / has the meaning given by sections 33 and 34.
employer / includes the persons described as employers in Part 2, Divisions 2 and 3.
employer support payment / means a payment made under this Determination.
employment / includes the arrangements described as employment in Part 2, Divisions 2 and 3.
family member / includes the following persons:
a. the member’s spouse or de facto partner;
b. the spouse or de facto partner of a person who is a family member of the member;
c. in relation to the member or member’s spouse or de facto partner, any of the following persons:
i. a child, or other lineal descendant;
ii. a parent or grandparent;
iii. a sibling;
iv. an uncle or aunt;
v. a nephew or niece;
d. the spouse or de facto partner of a person mentioned under paragraphc.
full-time work / has the meaning given by section 17.
government business enterprise / has the same meaning as in section 4 of the Commonwealth Authorities and Companies Act 1997.
income / means an amount described as income under Part 2 Division 5.
member / as the same meaning as in section 7 of the DRSP Act.
military leave / means leave (however described) that an employer may grant to a member to undertake defence service, other than leave that is taken not to be an absence for Defence service (see section 37).
normal working hours / for a member, means the working hours calculated using Part 2 Division 4.
part-time work / has the meaning given by section 17.
qualifying period / means the qualifying periods described in Part 3 Division 2.
rank / includes equivalent rank.
Reserves / has the same meaning as in the Defence Act 1903.
self-employed member / means a member who is a self-employed member in accordance with Division 2 of Part 2.
Service chief / means the Chief of Navy, the Chief of Army or the Chief of Air Force.
Sessional fee / means the compensation known as legal officer sessional fee to which a legal officer who is a member of the Reserves may be entitled.
Unit / means the defence authority responsible for an employee’s or self-employed member’s personal administration as a member.
Division 3: Decisions under this Determination
5Decision-makers
6Information to support a claim
7Overpayments and recovery
5Decision-makers
5.1 / A decision that is required to be made for the purpose of this Determination may be made by a Service Chief in the Service to which a claim relates, or a delegate of the Service Chief.5.2 / The Service Chief may delegate any of their powers, except the power to approve a class of claims, to an officer at or above the rank of Brigadier (or equivalent rank).
See: Section 46, Approval of classes of claims
5.3 / The Service Chief may make the delegation subject to written directions.
5.4 / A decision-maker must not act to decide any matter relating to a claim if he or she has an interest in the employing body or related entity.
Related Information: Defence Instruction (General) 25-6, Conflicts of interest and declarations of interests
5.5 / A claimant must be notified in writing of a decision made under this Determination. If a claim is not approved this must include any reasons for refusing the claim.
6Information to support a claim
6.1 / In addition to approving or refusing any matter for decision under this Determination, a decision-maker may make a written request to a claimant to provide further information.6.2 / The decision-maker may make a request for further information on any of these occasions.
a. / In the course of deciding a claim.
b. / As a result of information received about a change in circumstances.
See: Section 40, Change in circumstances
c. / For the purpose of audit or review of a claim.
6.3 / If the further information is not provided within 30 days of their request, the decision-maker may make a decision to refuse or cease payment of the claim based on the absence of relevant information.
6.4 / Giving false or misleading information is a serious offence.
Notes:
1. Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents. The Criminal Code is a Schedule to the Criminal Code Act 1995.
2. Section 56 of the Defence Force Discipline Act 1982 creates a military disciplinary offence for a false or misleading statement made in relation to an application for a benefit.
7Overpayments and recovery
7.1 / This section applies if a self-employed member must repay to the Commonwealth any overpayment made under this Determination.7.2 / The Commonwealth may recover the overpaid amount from the salary and allowances that the member has been – or may be – paid. The Commonwealth still has the right to recover the overpaid amount by other means.
Part 2 How to identify employment
Division 1: Persons who are not employers or employees
8Hobbies and volunteers
9Persons who fail to meet a test under this Part
8Hobbies and volunteers
8.1 / A person described in the table is taken not to be an employer or an employee for any of the purposes of this Determination.Item / A person who ...
1 / conducts an activity or interest of a kind that is conducted primarily for pleasure or relaxation
2 / conducts an activity or interest that is not primarily the person’s regular occupation
3 / conducts an activity or interest wholly or primarily in the person’s spare time
4 / voluntarily engages in an activity of a charitable kind and without the expectation of receiving significant remuneration or another significant reward
5 / voluntarily engages in an activity that is not reasonably likely to create a financial profit for the person and without the expectation of receiving significant remuneration or another significant reward
6 / voluntarily engages in an activity for a body that operates on a not-for-profit basis, and engages in the activity without the expectation of receiving significant remuneration or another significant reward
8.2 / Subsection 1 applies whether or not another provision of this Determination implies that the person may be undertaking employment.
Example: Conducting an activity or interest for pleasure or recreation could be argued to be ‘part-time work’, but the person who conducts the activity or interest is taken not to be an employer or an employee.