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Review of the Defence Reserve Service (Protection) Act 2001 - Entries
Below is a selection of peoples responses to the Defence Reserve Service (Protection) Act 2001.
Entries
State: Australian Capital Territory
Comments: I have been a member of the Army Reserve for over nine years. I have only once needed to ask the Defence Reserve Support Council (DRSC) a question. Unfortunately my question was not covered by the act.
Almost two years ago I was deployed on Operation Relex. I contacted my then health fund (NIB) asking my membership to be suspended. They refused and I contacted the DRSC. They made enquiries and said that although I was being financially disadvantaged by having to make payments whilst on CFTS it was not in the act that health funds had to suspend. My mother contacted the health fund ombudsman who contacted NIB on my behalf. NIB eventually agreed to suspend, after my Mum made comments about the media enjoying a story like this.
I ask that you include health fund membership as a protected piece of the act. There must be other members of the reserves who have had this problem.
Thank you
PS I'm no longer a member of NIB.
State: Victoria
Comments: Sir,
Thankyou for the opportunity to offer a submission on the Defence Reserve Service (Protection) Act 2001. My name is ### and I am a current serving Defence Member of 22 years service in Australian Regular and Army Reserve. I'm posted at the Operations Officer, 15 Transport Squadron, 9th Force Support Battalion.
I am also an employee of the ### and perform duties as a Detective Senior Constable at the Horsham Crime Investigations Unit and I have been a member of the Victoria Police for 17 years.
I would like to comment on the Defence Reserve Service (Protection) Act and its relevance to my situation when I deployed in 2004 and on Defence Reserve service in general.
In February 2004, I was successful in nominating to deploy on Operation Anode to the Solomon Islands where I was to perform duties as a Troop Commander within the Force Support Squadron.
My workplace consists of 1 Detective Sergeant (D/SGT) and 3 Detective Senior Constables (D/S/C) and the work load, then, was spread between the D/S/C, with the D/SGT attending to administration only.
I experienced a significant amount of indirect pressure from my immediate superior about my impending deployment; this was despite the support of upper Management in my absence from the work place. Although the workings of Defence Reserve Service (Protection) Act 2001 were not widely known within ###, certainly the support given to reservist is wide spread. This was evident in the support of management and their reassurances that despite my supervisor's best efforts to knobble my deployment, management accepted the deployment as firstly, a requirement due to ### policy and secondly, as a professional experience for myself that should be taken as it was in my best interests.
In regards to my then supervisor's, the requirements of the Defence Reserve Service (Protection) Act 2001 were highlighted to him, whilst this was an easy thing for him to accept, he yielded. I would say that without a doubt, if there was not the protection given to reservists by the Act, and faced with my scenario, their service would certainly be restricted. From my perspective and that of the soldiers in my unit, the Act is certainly welcome, although reference to it does not occur often; it is certainly a comfort that it exists.
With respect to other reserve members within our Squadron, being able to be released from their employer is significantly increased due to the availability of employers to access Employer Support Payments (ESP). Without this support to employers, it would be difficult for our members to render the amount of service with they currently do. Members of this Squadron would perform, on average, 45-60 days per year rendering defence service, and many members render in excess of 120 days. Given the nature of our formation, 17 (Combat Service Support) Brigade, a large majority of the work performed by our members is operation or live tasking in support of Army Units, other Defence Organisations and Non-Governmental agencies.
Thank you for the opportunity in making a submission to this review.
Yours sincerely,
###
State: Australian Capital Territory
Comments: Thank you for the opportunity to participate in the review of the Defence Reserve Service (Protection) Act 2001.
### is satisfied with the current legislation in place, and believes that the Act allows for arrangements that are facilitative and flexible.
We have not experienced any difficulty with the current legislation and therefore have no suggestions on how it may be improved.
Thank you again for the opportunity to participate.
Kind regards
###
State: Western Australia
Comments: Sir
Whilst in essence I believe the changes to the defence act to be steps in the right direction I have some concerns which are as follows:
Currently to deploy on operations members of the ARES need to "volunteer", as an individual who has already volunteered as a member of the forces why should this need to be the case again?
Further, there are now three tiers of service, surely it would make sense in the long run to adopt the UK model and state "you are a member of the reserves and can be called on if required" the Act now permits this but it is not used. Moreover, being called for from an employment point and family perspective is far easier to deal with and is more readily accepted by employers etc. than (I volunteered). Not only that, there are more mechanisms in place from an employment protection aspect and so forth. Stating you "volunteered" can send out the wrong signal inferring that you prioritise the reserves over your career.
Finally, there is currently no mechanism in place to make up any wages shortfall by "volunteering" for service. Making up the wages shortfall (again as per the UK model) would allow a soldier unhindered to set out on any task knowing that he or she will not be financially penalised for serving their country. The request to employers for ESP contributions is not good enough when that employer will already suffer lost revenue by a soldier's deployment. I know of at least two soldiers recently who had to knock back the opportunity to serve overseas as they would have been more than 20K out of pocket. To say they were disappointed by having to withdraw as no mechanism is in place to assist them with lost wages is an understatement. With the mean price of properties in Perth now over $500K these two senior soldiers with young families will not be alone.
I welcome the changes as stated above but believe some further tweaks as listed do need to be considered.
State: Western Australia
Comments: Dear Sir,
Firstly thank you giving the opportunity to make a submission with regard to improving the Defence Reservist Protection Act.
Whilst in essence I believe the Defence Reservist Protection Act to be a step in the right direction( and was sorely needed ) and any changes that enhance the Act to ensure the Army Reserve remain viable, I have some serious concerns, which I outline as follows:
a. It is the current 'policy' to deploy on operations members of the Army Reserve on a 'volunteer' basis; as an individual, I have already volunteered to being deployed by the Commonwealth when I enlisted. Why should, when the opportunity is presented (eg 'Operation Anode') I have to volunteer again?
b. Further, there are now seems to be three (3) tiers of service.
It would make sense in the end to adopt the model currently being employed in the United Kingdom and state 'you are a member of the reserves and can be called on if required'.
The Defence Act now permits this but it is not being employed it seems for either political or misinformed capability reasons. Moreover, being called for from an employment point and family perspective is far easier to deal with and is more readily accepted by the majority of employers and institutions within Australia. , than the 'I've volunteered' scenario we are being presented with at this current point in time; Not only that, there are more substantial mechanisms in place from an employment protection aspect and so forth.
Stating you have 'volunteered' to be deployed can (and does in many employers' eyes) send out the wrong signal inferring that you prioritise the Defence Reserves over your career.
c. Finally, and of equal importance is the complete lack of any sort of mechanism in place for the 'make up' any wages shortfall by the volunteering for service.
Making up the wages shortfall (and again I make reference towards the United Kingdom model) would allow Defence personnel unhindered to set out on any task knowing that they will not be financially penalised for serving their country.
The request to employers for ESP contributions is not good enough when the employer will already be suffering lost revenue by a soldier's deployment. Recently I was asked if I wanted to deploy on OP ANODE (volunteering of course) and unfortunately I have to knock back the opportunity to serve overseas as I would have been more than 20K out of pocket; and no I'm not a professional (eg doctor, lawyer, etc). This was also the case with my CSM who works within the oil and gas industry.
To say I (and he) was very disappointed by having to withdraw, as there was no mechanism is in place to assist us with the loss of wages would be an understatement. Along with my wife, I explored all avenues to enable me to deploy - even to the extent of selling of one of our cars and cashing in my long service leave but reality struck home. Why should I have to go to these efforts to deploy when the mechanisms are available to avoid this and are just not being employed (being called for / called out).
With the mean price of properties in Perth now on average over $500K many of my peers who have young families are in the same boat.
Overall, the Defence force should not lose sight that the Defence Reserves and in particular the Army Reserve is an important level within our Defence structure - otherwise we would not have it.
For too long the Army reserve has been devalued by senior command and successive Governments for reasons I feel are based on outdated opinions, ideas and misconceptions. If the British Army can deploy their Territorial Army within six (6) weeks, without financial hardship, and without asking for volunteers, then why cannot Australia.what are we afraid of?
I want to be deployed and to put into practice all of the skills that I have acquired over the 20 years of service and at cost to the taxpayer as a whole. That said, I would not volunteer for deployment if it were going to leave my family, my employer and me worse off.
Thank you again for allowing me the opportunity to forward my submission.
State: Australian Capital Territory
Comments: Any deployed service needs to _automatically_ be protected service without further application or action on behalf of the member or others.
When I deploy it is usually at very short notice (hours or days), so there is not the time available for the process of applying for protected service to be actioned before I go.
I am presently on 24h NTM, which is not unusual.
Thanks for considering my input..
State: Victoria
Comments: DEFENCE RESERVE SERVICE (PROTECTION) ACT 2001 - SECT 17 'Hindering employee from serving in Reserves'
From an employers point of view there is a lack of balance between the legal obligations of an employer to make available a reservists and the obligations of unit commanders requiring the services of a Reservist.
The act implies that the Employer must release the Reservist and it is a criminal offence if the employer refuses to comply regardless of notice given or whether the request is considered reasonable.
All to often employers are not provided with any official letter and often a request is recieved by the employer on a Friday for the resevists to be released the following Monday. This is unfair and regardless of the Act the employer will be averse to hiring a reservists, thus disadvantaging other reservists.
The legislation does not impose any requirements on Unit Commanders to:
a. Provide reasonable notice
b. Discuss the impact of the release with the Employer c. Provide optional dates for the release.
DI(G) PERS 05-42 Para 95. 'Letter to employers'. Requires Unit Commanders to provide a letter to the employer when a Reservist joins a Unit or changes civilian employement. However, there is no requirement for the Unit to provide a letter when the Reservist's is required for an ADF commitment that will result in extended absence from the civilian workplace. Such a letter is not only polite but means the reservist does not have to go 'cap in hand' to try and present/negotiate his case.
It is recommended that a separate Defence Instruction be developed which lays down the ADF process for requesting reserves to be released by employers, This should include:
a. How to approach the employer
b. The Level of Approval required for given minmum periods of notice eg:
------ CAPT (E) 4 weeks notice
------ MAJ (E) 3 weeks
-------LTCOL(E) 2 weeks
-------COL (E) 1 week
-------BRIG (E) Less than 1 week
c. A letter format that provides guidance on
-------Stating the requirement for the Reservists -------A brief reminder of the ESP and the address to send the claim to
------ The local DRS Office contacts
State: Victoria
Comments: Having the legislative backup to conserving reservists employment is all very well, but as long as the "official" reasons for an employer to hold back a reservist in his employment are not stated as "because he is a reservist", the employer will still be able to disadvantage the reservist.
My own example is this, my employer is the ###. I have conditions of employment which officially enable and encourage reserve employment, however, at the coal face ie. job interviews and performance reviews, there is much adverse questioning about my reserve service (For the last ten years I have averaged about three weeks continuous time, even though I have an entitlement for five weeks, I give lots of notice prior to going, I do my reserve time to fit in between scheduled busy times at work.).
I think there are good mutual benefits from reserve service but I am unable to convince others of this.
Defence civillian supervisor see reservists as employees who take more leave than other employees and military supervisors see reservists as "second rate" servicemen, they have told me this but won't "officially" relay this.
I have been a reservist for 24 years and have been in the same job for 20 although I have tried to move positions within Defence (tranfers and promotions), I see my reserve work as being fundamental to my early plateaued career.
I am now of the opinion that I will NOT tell supervisors I am a reservist as I think it goes against me. I have even taken recreation leave to do reserve time rather than take my reserve leave entitlement.
Other reservists I know have had similar experiences and the majority don't tell their employers they are reservists for similar reasons to my own.
For the above reasons I would not recommend a reserve career to young people (ie. my adult children).
State: Northern Territory
Comments: I was offered CFTS to backfill a member who was deploying. I attempted to get LWOP from my Commonwealth Department permanent position to enable me to provide support to my country through filling this position, whilst also improving my skills as a Reservist and a Commonwealth employee. My employer refused to grant me LWOP as it was considered 'voluntary' CFTS Iand I consequently had to resign to take the opportunity.
I believe the Act needs to be stronger particularly between Commonwealth Departments as surely the role of a Defence member should outweigh nearly every other role. I can understand the position of a small business being unable to release a Reservist but for another Department to refuse was to me embarassing.
State: New South Wales
Comments: As an Officer in the Army Reserve I have a vested interest in a strong and enforcable Defece Reserve Protection ACT.
I understand the intent behind the act but feel that it does not go far enough to protect my Reservists. I would like to illustrate this by presenting the following scenario:
After checking with their employer, a Reservist nominated for a course and submits a leave application with a Training Notice PA074. Leave is Granted. Unfortunatly the Reservist is not paneled and has to go to work, this leaves one upset employer. A few months later the same soldier nominates for another course and once again submitts a training notice with a leave application, once more it is approved and this time the course goes ahead and the reservist goes on course.
On return the soldier is advised that he is losing his job (either by "redundancy" or being fired). However the reason given for the dismissal was 'Quality' or 'Quantity' of work completed. The Reservist and I both know that the real reason they were let go is because the employer was upset about granting Army Reserve and did not want the liability of having to grant 'Reserve Leave at any time". The Reservist makes a few enquiries but find that under the new Workplace Relations Act they are not entitled to make a claim of unfair dismissal and that there is no way to "prove" that he was sacked because of his Reserve committment. The member then goes and finds another job.
The only way that I can see to improve this situation and at the same time increase employer support is to:
1. Legislate that every Australian who joins the Army Reserve is to get Four weeks leave to attend Recruit Training and two weeks leave a year after that (leave is non accruable) to attend a training course or annual field exercise; this is to be in addition to the annual leave, parental leave and sick leave entiltements.
2. Legislate that any employer with a Reservist will get an automatic tax break or ex gratia payment to compensate for the loss of productivity that results from haveing a reservist (NB: I have four reservists with employers that are eligible to receive Employee Support Payments ESP, not one company has returned the forms as they 'do not have the time' to complete them).
Please feel free to contact me if you have any further questions.
State: Australian Capital Territory
Comments: I am a reservist with a full time unit. It is possible that the Defence Reserve Service (Protection) Act 2001 focuses on reserves in reserve units without considering those reservists who are attached to full time units.
My perspective includes the following points:
* As I am attached to a fulltime unit, there is no Tuesday night parade.
* Most often, my service is for a few hours at a time during business hours or a full day during the week and therefore impacts on my employer in a different way
* As I am much more likely to serve for periods of less than 6 hours (during business hours), it is frustrating that the pay is restricted to 1/3 and 1/2 day increments as this does not take into account travel times and the time taken to change into uniforms etc. For example, 4 or 5 hours of service is still only half a day's pay (~$50) despite requiring half a day's leave from work.
* The employer support payment scheme is not really available to me as I tend to take individual days off (during the week) for Reserve service rather than 1 or 2 weeks at a time. This makes it virtually impossible to meet the 14 day qualification period.
I am not aware of the number of people in a similar circumstance to me, however, I feel this perspective is worth consideration.
Thank you for the opportunity to provide a submission.
State: Queensland
Comments: My wife worked for a very large organisation in Victoria, one of the largest non government employers in Melbourne. At the same time she also joined the Army Reserve. As she was in officer training at MUR she had to complete her courses within the three year period, a training notice was issued to the employer and the leave approved, the employer did not pursue financial reimbursement. My wife also took copies of the defence policy and the act to management and the legal department for information. MUR also told her that if she did not go on the training she would be discharged as the three year period would lapse.
Whilst at the airport the organisation rang and told her the leave had been revoked, and she would need to return to work not to go to the army course as it would be detrimental to her employment. Returning was not possible and she left for her course. A letter was sent to the ADJT of MUR stating my wife had abandoned her employment and her employment would be terminated. Upon return from her course she was not even allowed to enter the work place to clear her desk.
My wife sought help from ORSP and higher, mediation was the solution. My wife was told she would not need representation. However the organisation sent two of her managers who had a legal team constantly on their mobile phones.
Initially her employment was terminated with no leave or other entitlements or severance pay provided. My wife was offered her job back after a period of discussion. However the situation that my wife found her self in meant she was not able to return to the employment. She was eventually paid her entitlements. She also received a reference from the organisation. The army would not pursue the issue any further due to "not wanting to go to court" and my wife was told that support would be removed if she did not accept the offer for payout of entitlements and a letter of reference.
This organisation "hindered" her reserve service, threatened and then terminated her employment due to reserve service. This was shown by a letter to the ADJT of MUR. Still nothing was done to protect her employment. Moreover, nothing in the act prevented the adverse situation that occurred between termination and the mediation. Similarly nothing in the act provides financial protection for the reservist should the reservist's employment be terminated (which could be recouped should the employer be found at fault). I also find it difficult to understand why the army would not pursue the issue to court when the civilian organisation was clearly in breech of the act. Why have the act if it is not to be tested?
The ironic part of all of this is that MAJGEN Guarde (not sure of the spelling), advertising the reserve protection act, was meeting with the owner of this organisation and staying in one of the hotels owned by the organisation at the time. The head of the organisation she worked for was also very high up in the civilian representation for the act.
State: New South Wales
Comments: I have had to contact ORSP on a number of occasions in regard to my employer. These issues are eventually "resolved" because they are in breach of the Act and libel to fines/prosecution.
However, the difficulties that I experience in rendering my service to the RAAF are, I believe, due more so to local management in Newcastle.
As they have become more aware of the Act, their responsibilities and my tenacity the impediments to meeting my commitments have subsided.
However, now I am faced with harassment, bullying, and victimization from avenues not under the jurisdiction of the ORSP.
So while the Act has helped me achieve and meet my RAAF commitments it is limited in the protection it can offer from a vindictive management.
State: New South Wales
Comments: The issue is that ESP occurs after 3 weeks. I can't get released to do the few days at a time that my unit needs me for. The employer, NSW government should get $$$ as soon as I go to the Army. That way they would release me and they would have no reason to prevent me from attending and taking time off work. ESP doesnt help me attend ARMY
State: Victoria
Comments: I am a retired member of the Army Reserves, with over 35 year's service,
On retirement my ranks was Sgt, in the RACT.
I found over the years, it was very hard to get leave from work to complete my Reserve obligations, when employed in a private enterprise, I then found a job with the State Government of Victoria the past 28 years of my Reserve service, I had no problems, in fact they encouraged me to attend as many annual field exercises and courses as possible, for a Reservist this was great, but again I found one thing that bothered me a lot, I had no formal recognition of all the subjects I had attained.
I know in the Regular Army this not the same, because for your rank there is civilian qualification to match, there is a procedure that must be carried to before these qualifications are awarded to the individuals, We in the Reserve have not had the satisfaction of this system or the opportunity to excess this system.
We work along side members of the Regular Army, they tell what they have achieved over the years, but we can not.
I spent many years carrying out methods of instruction, in the lecture room and out side on RACT subjects. But when I apply for a position of a training nature, I was never successful, yet I have been trained to a much higher standard, that I would ever find in my State Government employ. Because my qualification are not recognizes and can not be carried over, but if I did a course on certificate 4 method of instruction and assessment, this will be ok. But with no RPL, I must complete the full subject to get a pass.
Why should this be aloud to happen, its ok for the Regular Army, to get there recognition for the Rank they hold and all the subject they have acquired over the year's
Thank you for your time, and the opportunity to make a submition, to what I feel is a very important matter
State: Australian Capital Territory
Comments: To Whom It May Concern,
A concern of mine since leaving the ADF and transferring to the Active Reserve is the growing situation where those Reserve members who continue their employment within the ADO and progress on to more senior positions are affectively discouraged from undertaking Reserve Service, not by any formal constraint but by virtue that having progressed to more senior ADO officer responsibilities (which they share with their ADF equivalents, often in a side by side relationship), they are bound by their separation rank to complete Reserve Service in more junior, less fulfilling positions, which is often actively discouraging participation in Reserve Service.
To this end, the goal of effectively creating a level playing field (ex Navy here) by tossing every member (full time and Reserve) into the one promotion pool is having the negative affect of discouraging or for want of a better explanation baring members from undertaking service. It is a myth to suggest that any Reserve Officer undertaking 20 days service annually can compete with a permanent member of the ADF (unless they are really well connected) in the promotion stakes.
If you want to get serious about building an affective and competent Reserve, best able to support the ADF through these increasingly difficult times, then you need to introduce a program that fully acknowledges ADO (of which the ADF is clearly a part) skills, rank and status and returns parity in the promotion stakes. Only then will you be able to tap into the extraordinary resources that are being driven towards losing interest in Reserve Service. Do the numbers, how many ADO members are actually ex ADF, I'm sure you'll find the stats impressive.
The likely outcome of such an equitable program is that you will find an enhanced level of mobility and capacity back and forth through the ADO, encouraging very skilled practioners and managers to remain connected to their ADF roots, managing their ADO careers. Otherwise, these extremely valuable and highly skilled people will be lost.
The above is clearly only a small snippet of the overall picture of actively encouraging the building and sustainment of a healthy Reserve.
State: Victoria
Comments: Review of Defence Reserve Service (Protection) Act 2001 ###
1. Introduction
1.1. This submission reviews the Defence Reserve Service (Protection) Act 2001 (the “Act)” in accordance of the Act’s objective to protect members of the reserves in employment. Peter Lindsay MP, in a media release dated 17 April 2007 has also outlined the importance of considering the needs of employers who employ reservists;
“… we need to make sure that it (the Act) achieves these objectives
without placing an excessive burden on employers…”
1.2. Hence, this submission outlines the ### concerns regarding the Act, and raises issues regarding potential changes which the Reserve Service Protection Review Panel (the “Panel”) might be considering. This review is structured into two areas with general comments initially made followed by specific legislative concerns.
1.3. It is noted the ###, as an employer association, is only expressing concerns potentially affecting our members i.e., issues surrounding the employment of reservists. This report does not provide comment on non employment related issues under the Act such as eduction protection, partnership protection and financial liability protection.
2. General Comments
2.1. Generally, the Act provides legislative protection for reservists whilst seeking to balance the needs of employers. However, the Act must be reviewed in the context of other employer support programs and initiatives such the Employer Support Payment Scheme and various Defence Reserve Support Committees. Without these initiatives, the Act would arguable struggle to balance the needs of employers with the rights of reservists.
2.2. The ###’s main concern is that, where the Act is amended to strengthen the rights of reservists in connection with employment, the needs of employers are not adequately considered, especially the needs of small employers. In country Victoria it can be difficult to replace workers and if a reservist is on leave then attracting alternative labour can be problematic. To leave a job open can also create problems. In recent years, drought and the change in seasons can alter labour requirements. So while a job may be left open, other factors such as weather can jeopardise the continuation of the employment relationship. Employers should not be placed in a position of having to re engage a reservist if there is no job to come back to. We note sections 32(3) and 32(4) and fully support this section remaining in the Act. In the Act, it is not until a Court hearing that hardship can be addressed. Under such circumstances the employer would be faced with court costs to fight such a claim.
2.3. Small businesses seldom have adequate time and resources to interpret complex legislative requirements so an eduction campaign needs to be done to make employers aware of their responsibilities.
3. Specific Legislative Concerns
3.1. The ### supports limitations on maximum penalty units for contraventions of Divisions 2-5 of Part 4 of the Act to 30 penalty units, especially considering the definition of “discrimination in employment” is seemly very broad under Division 2 of the Act. Any significant change in the maximum penalty units would be an excessive financial deterrent for small employers to employee reservists.
3.2. We believe sections 25(3) and 26(4) of the Act provide flexibility and we do not support their exclusion from the Act.
3.3. Division 4 of Part 5 of the Act outlines the effect of defence service on particular employee entitlements. The ### is largely supportive of this Division, especially section 30(2) of the Act. However, the ### is concerned the Act is not clear regarding the accrual of particular entitlements whilst as employee is engaged in defence service. Specifically, sections 31(2)(a) and 31(3)(a)(b) is worrying. The ### strongly contests that employers become liable for annual and personal leave accrual whilst a reservists is on defence leave as the employer does not receive any benefit from the employee’s normal work during defence leave and may have to hire replacement workers.
3.4. We believe exceptions provided by sections 32(3) and 32(4) of the Act should be retained to balance the needs of employers. However, we propose section 32(3) be extended to section 32(2)(b) as the current Act effectively only provides the employer with only one choice; that being to terminate the employee’s employment in circumstances of redundancy i.e., the legislative does not allow the employer to reduce other employment terms such as changing employment status from full time to part time. Hence, the Act may actually apply to the detriment of the reservist.
3.5. We support section 33 of the Act regarding no further obligations on employers.
3.6. We believe seeking civil enforcement within a period of 3 years pursuant to section 73(3) is too long for the purpose of a reservists or ex reservist seeking remedy for being terminated after resuming employment under section 32 of the Act. In comparison, an employee has 21 days from the date termination took effect to apply to the Australia Industrial Relations Commission for relief in respect of termination of employment under section 643 of the Workplace Relations Act 1996 (Cth). We propose that consistency with the Workplace Relations Act 1996 (Cth) should apply. We are also concerned that section 73(4) of the Act allows an reservist or ex reservists to seek remedy for unfair dismissal under the Workplace Relation Act 1996 (Cth) where the said employee has already benefited from compensation for termination pursuant to section 32 of the Act. This ‘double dipping’ could place undue financial hardship on employers and in effect, act as a deterrent to employing reservists.
3.7. In relation to section 74 of the Act, we propose a penalty system apply regarding the termination of employment to allow for maximum monetary penalties to employers, especially considering the potential broad scope of section 32(2)(b) of the Act.
3.8. Sections 75(3)(c) and 75(3)(d) seemingly provides a “interested person” or a “a prescribed person acting on behalf of an interested person” with very strong legislative access for seeking mandatory injunctions, regardless of whether or not it appears to the Court the person is going to do the “the act” (s.71(1) of the Act). We propose the paragraphs be amended.
3.9. The ### would be opposed to changes to section 81(2) regarding maximum penalty units.
3.10. We are concerned that regulation 7(1) of the Act provides very broad powers to an “authorised person”, in effect the onus of proof seemingly lies with the employer to disprove the evidence of a “authorised person”.
3.11. We support regulations 14, 15 and 16 of the Act as this may promote quick settlement of disputes without creating unnecessary stress and financial hardship on employers. However, we note that such form of dispute resolution appears to be discretionary.
3.12. The ### would be opposed to any changes to regulation 19(1) regarding maximum penalty units. Further, we propose amendments requiring the Director to provide the employer with information concerning potential consequences of giving false or misleading information and/or not complying with the notice. Such information may encourage the employer to act promptly and hence resolve the dispute quickly.
3.13. Due to the potential serious consequences to employers for breaching the Act under Part 11, we believe that where “the person” waives his or her rights to provide a document in accordance with regulation 20(1), the waiver should be in writing to avoid any confusion regarding verbal agreement between the parties.
4. Conclusion
4.1. The objective of this submission was to outline the ###’s concerns regarding the employment of reservists. A number of general and specific legislative concerns were raised.
4.2. In summary, the ### is deeply concerned that employers, especially small employers, can be burdened with significant costs of defending Court action under the Act. Further, the issue of whether an employee is entitled to accrue personal and annual leave whilst on defence leave is also very troubling.
4.3. It was noted the ### supports the current capping of maximum penalty units under various provisions of the Act, and does not support any proposal to increases such maximum penalty units. We also believe the Act needs to be reviewed in context of other programs such as the Employer Support Payment Scheme which arguable seeks to balance the rights of reservists with the needs of employers.
4.4. In conclusion, the ### is concerned that where the Act is strengthened to protect the rights of reservists, the needs of small employers in the agricultural industry are not adequately considered and/or protected under the Act.
Comments: I have been a member of the Army Reserve for over nine years. I have only once needed to ask the Defence Reserve Support Council (DRSC) a question. Unfortunately my question was not covered by the act.
Almost two years ago I was deployed on Operation Relex. I contacted my then health fund (NIB) asking my membership to be suspended. They refused and I contacted the DRSC. They made enquiries and said that although I was being financially disadvantaged by having to make payments whilst on CFTS it was not in the act that health funds had to suspend. My mother contacted the health fund ombudsman who contacted NIB on my behalf. NIB eventually agreed to suspend, after my Mum made comments about the media enjoying a story like this.
I ask that you include health fund membership as a protected piece of the act. There must be other members of the reserves who have had this problem.
Thank you
PS I'm no longer a member of NIB.
State: Victoria
Comments: Sir,
Thankyou for the opportunity to offer a submission on the Defence Reserve Service (Protection) Act 2001. My name is ### and I am a current serving Defence Member of 22 years service in Australian Regular and Army Reserve. I'm posted at the Operations Officer, 15 Transport Squadron, 9th Force Support Battalion.
I am also an employee of the ### and perform duties as a Detective Senior Constable at the Horsham Crime Investigations Unit and I have been a member of the Victoria Police for 17 years.
I would like to comment on the Defence Reserve Service (Protection) Act and its relevance to my situation when I deployed in 2004 and on Defence Reserve service in general.
In February 2004, I was successful in nominating to deploy on Operation Anode to the Solomon Islands where I was to perform duties as a Troop Commander within the Force Support Squadron.
My workplace consists of 1 Detective Sergeant (D/SGT) and 3 Detective Senior Constables (D/S/C) and the work load, then, was spread between the D/S/C, with the D/SGT attending to administration only.
I experienced a significant amount of indirect pressure from my immediate superior about my impending deployment; this was despite the support of upper Management in my absence from the work place. Although the workings of Defence Reserve Service (Protection) Act 2001 were not widely known within ###, certainly the support given to reservist is wide spread. This was evident in the support of management and their reassurances that despite my supervisor's best efforts to knobble my deployment, management accepted the deployment as firstly, a requirement due to ### policy and secondly, as a professional experience for myself that should be taken as it was in my best interests.
In regards to my then supervisor's, the requirements of the Defence Reserve Service (Protection) Act 2001 were highlighted to him, whilst this was an easy thing for him to accept, he yielded. I would say that without a doubt, if there was not the protection given to reservists by the Act, and faced with my scenario, their service would certainly be restricted. From my perspective and that of the soldiers in my unit, the Act is certainly welcome, although reference to it does not occur often; it is certainly a comfort that it exists.
With respect to other reserve members within our Squadron, being able to be released from their employer is significantly increased due to the availability of employers to access Employer Support Payments (ESP). Without this support to employers, it would be difficult for our members to render the amount of service with they currently do. Members of this Squadron would perform, on average, 45-60 days per year rendering defence service, and many members render in excess of 120 days. Given the nature of our formation, 17 (Combat Service Support) Brigade, a large majority of the work performed by our members is operation or live tasking in support of Army Units, other Defence Organisations and Non-Governmental agencies.
Thank you for the opportunity in making a submission to this review.
Yours sincerely,
###
State: Australian Capital Territory
Comments: Thank you for the opportunity to participate in the review of the Defence Reserve Service (Protection) Act 2001.
### is satisfied with the current legislation in place, and believes that the Act allows for arrangements that are facilitative and flexible.
We have not experienced any difficulty with the current legislation and therefore have no suggestions on how it may be improved.
Thank you again for the opportunity to participate.
Kind regards
###
State: Western Australia
Comments: Sir
Whilst in essence I believe the changes to the defence act to be steps in the right direction I have some concerns which are as follows:
Currently to deploy on operations members of the ARES need to "volunteer", as an individual who has already volunteered as a member of the forces why should this need to be the case again?
Further, there are now three tiers of service, surely it would make sense in the long run to adopt the UK model and state "you are a member of the reserves and can be called on if required" the Act now permits this but it is not used. Moreover, being called for from an employment point and family perspective is far easier to deal with and is more readily accepted by employers etc. than (I volunteered). Not only that, there are more mechanisms in place from an employment protection aspect and so forth. Stating you "volunteered" can send out the wrong signal inferring that you prioritise the reserves over your career.
Finally, there is currently no mechanism in place to make up any wages shortfall by "volunteering" for service. Making up the wages shortfall (again as per the UK model) would allow a soldier unhindered to set out on any task knowing that he or she will not be financially penalised for serving their country. The request to employers for ESP contributions is not good enough when that employer will already suffer lost revenue by a soldier's deployment. I know of at least two soldiers recently who had to knock back the opportunity to serve overseas as they would have been more than 20K out of pocket. To say they were disappointed by having to withdraw as no mechanism is in place to assist them with lost wages is an understatement. With the mean price of properties in Perth now over $500K these two senior soldiers with young families will not be alone.
I welcome the changes as stated above but believe some further tweaks as listed do need to be considered.
State: Western Australia
Comments: Dear Sir,
Firstly thank you giving the opportunity to make a submission with regard to improving the Defence Reservist Protection Act.
Whilst in essence I believe the Defence Reservist Protection Act to be a step in the right direction( and was sorely needed ) and any changes that enhance the Act to ensure the Army Reserve remain viable, I have some serious concerns, which I outline as follows:
a. It is the current 'policy' to deploy on operations members of the Army Reserve on a 'volunteer' basis; as an individual, I have already volunteered to being deployed by the Commonwealth when I enlisted. Why should, when the opportunity is presented (eg 'Operation Anode') I have to volunteer again?
b. Further, there are now seems to be three (3) tiers of service.
It would make sense in the end to adopt the model currently being employed in the United Kingdom and state 'you are a member of the reserves and can be called on if required'.
The Defence Act now permits this but it is not being employed it seems for either political or misinformed capability reasons. Moreover, being called for from an employment point and family perspective is far easier to deal with and is more readily accepted by the majority of employers and institutions within Australia. , than the 'I've volunteered' scenario we are being presented with at this current point in time; Not only that, there are more substantial mechanisms in place from an employment protection aspect and so forth.
Stating you have 'volunteered' to be deployed can (and does in many employers' eyes) send out the wrong signal inferring that you prioritise the Defence Reserves over your career.
c. Finally, and of equal importance is the complete lack of any sort of mechanism in place for the 'make up' any wages shortfall by the volunteering for service.
Making up the wages shortfall (and again I make reference towards the United Kingdom model) would allow Defence personnel unhindered to set out on any task knowing that they will not be financially penalised for serving their country.
The request to employers for ESP contributions is not good enough when the employer will already be suffering lost revenue by a soldier's deployment. Recently I was asked if I wanted to deploy on OP ANODE (volunteering of course) and unfortunately I have to knock back the opportunity to serve overseas as I would have been more than 20K out of pocket; and no I'm not a professional (eg doctor, lawyer, etc). This was also the case with my CSM who works within the oil and gas industry.
To say I (and he) was very disappointed by having to withdraw, as there was no mechanism is in place to assist us with the loss of wages would be an understatement. Along with my wife, I explored all avenues to enable me to deploy - even to the extent of selling of one of our cars and cashing in my long service leave but reality struck home. Why should I have to go to these efforts to deploy when the mechanisms are available to avoid this and are just not being employed (being called for / called out).
With the mean price of properties in Perth now on average over $500K many of my peers who have young families are in the same boat.
Overall, the Defence force should not lose sight that the Defence Reserves and in particular the Army Reserve is an important level within our Defence structure - otherwise we would not have it.
For too long the Army reserve has been devalued by senior command and successive Governments for reasons I feel are based on outdated opinions, ideas and misconceptions. If the British Army can deploy their Territorial Army within six (6) weeks, without financial hardship, and without asking for volunteers, then why cannot Australia.what are we afraid of?
I want to be deployed and to put into practice all of the skills that I have acquired over the 20 years of service and at cost to the taxpayer as a whole. That said, I would not volunteer for deployment if it were going to leave my family, my employer and me worse off.
Thank you again for allowing me the opportunity to forward my submission.
State: Australian Capital Territory
Comments: Any deployed service needs to _automatically_ be protected service without further application or action on behalf of the member or others.
When I deploy it is usually at very short notice (hours or days), so there is not the time available for the process of applying for protected service to be actioned before I go.
I am presently on 24h NTM, which is not unusual.
Thanks for considering my input..
State: Victoria
Comments: DEFENCE RESERVE SERVICE (PROTECTION) ACT 2001 - SECT 17 'Hindering employee from serving in Reserves'
From an employers point of view there is a lack of balance between the legal obligations of an employer to make available a reservists and the obligations of unit commanders requiring the services of a Reservist.
The act implies that the Employer must release the Reservist and it is a criminal offence if the employer refuses to comply regardless of notice given or whether the request is considered reasonable.
All to often employers are not provided with any official letter and often a request is recieved by the employer on a Friday for the resevists to be released the following Monday. This is unfair and regardless of the Act the employer will be averse to hiring a reservists, thus disadvantaging other reservists.
The legislation does not impose any requirements on Unit Commanders to:
a. Provide reasonable notice
b. Discuss the impact of the release with the Employer c. Provide optional dates for the release.
DI(G) PERS 05-42 Para 95. 'Letter to employers'. Requires Unit Commanders to provide a letter to the employer when a Reservist joins a Unit or changes civilian employement. However, there is no requirement for the Unit to provide a letter when the Reservist's is required for an ADF commitment that will result in extended absence from the civilian workplace. Such a letter is not only polite but means the reservist does not have to go 'cap in hand' to try and present/negotiate his case.
It is recommended that a separate Defence Instruction be developed which lays down the ADF process for requesting reserves to be released by employers, This should include:
a. How to approach the employer
b. The Level of Approval required for given minmum periods of notice eg:
------ CAPT (E) 4 weeks notice
------ MAJ (E) 3 weeks
-------LTCOL(E) 2 weeks
-------COL (E) 1 week
-------BRIG (E) Less than 1 week
c. A letter format that provides guidance on
-------Stating the requirement for the Reservists -------A brief reminder of the ESP and the address to send the claim to
------ The local DRS Office contacts
State: Victoria
Comments: Having the legislative backup to conserving reservists employment is all very well, but as long as the "official" reasons for an employer to hold back a reservist in his employment are not stated as "because he is a reservist", the employer will still be able to disadvantage the reservist.
My own example is this, my employer is the ###. I have conditions of employment which officially enable and encourage reserve employment, however, at the coal face ie. job interviews and performance reviews, there is much adverse questioning about my reserve service (For the last ten years I have averaged about three weeks continuous time, even though I have an entitlement for five weeks, I give lots of notice prior to going, I do my reserve time to fit in between scheduled busy times at work.).
I think there are good mutual benefits from reserve service but I am unable to convince others of this.
Defence civillian supervisor see reservists as employees who take more leave than other employees and military supervisors see reservists as "second rate" servicemen, they have told me this but won't "officially" relay this.
I have been a reservist for 24 years and have been in the same job for 20 although I have tried to move positions within Defence (tranfers and promotions), I see my reserve work as being fundamental to my early plateaued career.
I am now of the opinion that I will NOT tell supervisors I am a reservist as I think it goes against me. I have even taken recreation leave to do reserve time rather than take my reserve leave entitlement.
Other reservists I know have had similar experiences and the majority don't tell their employers they are reservists for similar reasons to my own.
For the above reasons I would not recommend a reserve career to young people (ie. my adult children).
State: Northern Territory
Comments: I was offered CFTS to backfill a member who was deploying. I attempted to get LWOP from my Commonwealth Department permanent position to enable me to provide support to my country through filling this position, whilst also improving my skills as a Reservist and a Commonwealth employee. My employer refused to grant me LWOP as it was considered 'voluntary' CFTS Iand I consequently had to resign to take the opportunity.
I believe the Act needs to be stronger particularly between Commonwealth Departments as surely the role of a Defence member should outweigh nearly every other role. I can understand the position of a small business being unable to release a Reservist but for another Department to refuse was to me embarassing.
State: New South Wales
Comments: As an Officer in the Army Reserve I have a vested interest in a strong and enforcable Defece Reserve Protection ACT.
I understand the intent behind the act but feel that it does not go far enough to protect my Reservists. I would like to illustrate this by presenting the following scenario:
After checking with their employer, a Reservist nominated for a course and submits a leave application with a Training Notice PA074. Leave is Granted. Unfortunatly the Reservist is not paneled and has to go to work, this leaves one upset employer. A few months later the same soldier nominates for another course and once again submitts a training notice with a leave application, once more it is approved and this time the course goes ahead and the reservist goes on course.
On return the soldier is advised that he is losing his job (either by "redundancy" or being fired). However the reason given for the dismissal was 'Quality' or 'Quantity' of work completed. The Reservist and I both know that the real reason they were let go is because the employer was upset about granting Army Reserve and did not want the liability of having to grant 'Reserve Leave at any time". The Reservist makes a few enquiries but find that under the new Workplace Relations Act they are not entitled to make a claim of unfair dismissal and that there is no way to "prove" that he was sacked because of his Reserve committment. The member then goes and finds another job.
The only way that I can see to improve this situation and at the same time increase employer support is to:
1. Legislate that every Australian who joins the Army Reserve is to get Four weeks leave to attend Recruit Training and two weeks leave a year after that (leave is non accruable) to attend a training course or annual field exercise; this is to be in addition to the annual leave, parental leave and sick leave entiltements.
2. Legislate that any employer with a Reservist will get an automatic tax break or ex gratia payment to compensate for the loss of productivity that results from haveing a reservist (NB: I have four reservists with employers that are eligible to receive Employee Support Payments ESP, not one company has returned the forms as they 'do not have the time' to complete them).
Please feel free to contact me if you have any further questions.
State: Australian Capital Territory
Comments: I am a reservist with a full time unit. It is possible that the Defence Reserve Service (Protection) Act 2001 focuses on reserves in reserve units without considering those reservists who are attached to full time units.
My perspective includes the following points:
* As I am attached to a fulltime unit, there is no Tuesday night parade.
* Most often, my service is for a few hours at a time during business hours or a full day during the week and therefore impacts on my employer in a different way
* As I am much more likely to serve for periods of less than 6 hours (during business hours), it is frustrating that the pay is restricted to 1/3 and 1/2 day increments as this does not take into account travel times and the time taken to change into uniforms etc. For example, 4 or 5 hours of service is still only half a day's pay (~$50) despite requiring half a day's leave from work.
* The employer support payment scheme is not really available to me as I tend to take individual days off (during the week) for Reserve service rather than 1 or 2 weeks at a time. This makes it virtually impossible to meet the 14 day qualification period.
I am not aware of the number of people in a similar circumstance to me, however, I feel this perspective is worth consideration.
Thank you for the opportunity to provide a submission.
State: Queensland
Comments: My wife worked for a very large organisation in Victoria, one of the largest non government employers in Melbourne. At the same time she also joined the Army Reserve. As she was in officer training at MUR she had to complete her courses within the three year period, a training notice was issued to the employer and the leave approved, the employer did not pursue financial reimbursement. My wife also took copies of the defence policy and the act to management and the legal department for information. MUR also told her that if she did not go on the training she would be discharged as the three year period would lapse.
Whilst at the airport the organisation rang and told her the leave had been revoked, and she would need to return to work not to go to the army course as it would be detrimental to her employment. Returning was not possible and she left for her course. A letter was sent to the ADJT of MUR stating my wife had abandoned her employment and her employment would be terminated. Upon return from her course she was not even allowed to enter the work place to clear her desk.
My wife sought help from ORSP and higher, mediation was the solution. My wife was told she would not need representation. However the organisation sent two of her managers who had a legal team constantly on their mobile phones.
Initially her employment was terminated with no leave or other entitlements or severance pay provided. My wife was offered her job back after a period of discussion. However the situation that my wife found her self in meant she was not able to return to the employment. She was eventually paid her entitlements. She also received a reference from the organisation. The army would not pursue the issue any further due to "not wanting to go to court" and my wife was told that support would be removed if she did not accept the offer for payout of entitlements and a letter of reference.
This organisation "hindered" her reserve service, threatened and then terminated her employment due to reserve service. This was shown by a letter to the ADJT of MUR. Still nothing was done to protect her employment. Moreover, nothing in the act prevented the adverse situation that occurred between termination and the mediation. Similarly nothing in the act provides financial protection for the reservist should the reservist's employment be terminated (which could be recouped should the employer be found at fault). I also find it difficult to understand why the army would not pursue the issue to court when the civilian organisation was clearly in breech of the act. Why have the act if it is not to be tested?
The ironic part of all of this is that MAJGEN Guarde (not sure of the spelling), advertising the reserve protection act, was meeting with the owner of this organisation and staying in one of the hotels owned by the organisation at the time. The head of the organisation she worked for was also very high up in the civilian representation for the act.
State: New South Wales
Comments: I have had to contact ORSP on a number of occasions in regard to my employer. These issues are eventually "resolved" because they are in breach of the Act and libel to fines/prosecution.
However, the difficulties that I experience in rendering my service to the RAAF are, I believe, due more so to local management in Newcastle.
As they have become more aware of the Act, their responsibilities and my tenacity the impediments to meeting my commitments have subsided.
However, now I am faced with harassment, bullying, and victimization from avenues not under the jurisdiction of the ORSP.
So while the Act has helped me achieve and meet my RAAF commitments it is limited in the protection it can offer from a vindictive management.
State: New South Wales
Comments: The issue is that ESP occurs after 3 weeks. I can't get released to do the few days at a time that my unit needs me for. The employer, NSW government should get $$$ as soon as I go to the Army. That way they would release me and they would have no reason to prevent me from attending and taking time off work. ESP doesnt help me attend ARMY
State: Victoria
Comments: I am a retired member of the Army Reserves, with over 35 year's service,
On retirement my ranks was Sgt, in the RACT.
I found over the years, it was very hard to get leave from work to complete my Reserve obligations, when employed in a private enterprise, I then found a job with the State Government of Victoria the past 28 years of my Reserve service, I had no problems, in fact they encouraged me to attend as many annual field exercises and courses as possible, for a Reservist this was great, but again I found one thing that bothered me a lot, I had no formal recognition of all the subjects I had attained.
I know in the Regular Army this not the same, because for your rank there is civilian qualification to match, there is a procedure that must be carried to before these qualifications are awarded to the individuals, We in the Reserve have not had the satisfaction of this system or the opportunity to excess this system.
We work along side members of the Regular Army, they tell what they have achieved over the years, but we can not.
I spent many years carrying out methods of instruction, in the lecture room and out side on RACT subjects. But when I apply for a position of a training nature, I was never successful, yet I have been trained to a much higher standard, that I would ever find in my State Government employ. Because my qualification are not recognizes and can not be carried over, but if I did a course on certificate 4 method of instruction and assessment, this will be ok. But with no RPL, I must complete the full subject to get a pass.
Why should this be aloud to happen, its ok for the Regular Army, to get there recognition for the Rank they hold and all the subject they have acquired over the year's
Thank you for your time, and the opportunity to make a submition, to what I feel is a very important matter
State: Australian Capital Territory
Comments: To Whom It May Concern,
A concern of mine since leaving the ADF and transferring to the Active Reserve is the growing situation where those Reserve members who continue their employment within the ADO and progress on to more senior positions are affectively discouraged from undertaking Reserve Service, not by any formal constraint but by virtue that having progressed to more senior ADO officer responsibilities (which they share with their ADF equivalents, often in a side by side relationship), they are bound by their separation rank to complete Reserve Service in more junior, less fulfilling positions, which is often actively discouraging participation in Reserve Service.
To this end, the goal of effectively creating a level playing field (ex Navy here) by tossing every member (full time and Reserve) into the one promotion pool is having the negative affect of discouraging or for want of a better explanation baring members from undertaking service. It is a myth to suggest that any Reserve Officer undertaking 20 days service annually can compete with a permanent member of the ADF (unless they are really well connected) in the promotion stakes.
If you want to get serious about building an affective and competent Reserve, best able to support the ADF through these increasingly difficult times, then you need to introduce a program that fully acknowledges ADO (of which the ADF is clearly a part) skills, rank and status and returns parity in the promotion stakes. Only then will you be able to tap into the extraordinary resources that are being driven towards losing interest in Reserve Service. Do the numbers, how many ADO members are actually ex ADF, I'm sure you'll find the stats impressive.
The likely outcome of such an equitable program is that you will find an enhanced level of mobility and capacity back and forth through the ADO, encouraging very skilled practioners and managers to remain connected to their ADF roots, managing their ADO careers. Otherwise, these extremely valuable and highly skilled people will be lost.
The above is clearly only a small snippet of the overall picture of actively encouraging the building and sustainment of a healthy Reserve.
State: Victoria
Comments: Review of Defence Reserve Service (Protection) Act 2001 ###
1. Introduction
1.1. This submission reviews the Defence Reserve Service (Protection) Act 2001 (the “Act)” in accordance of the Act’s objective to protect members of the reserves in employment. Peter Lindsay MP, in a media release dated 17 April 2007 has also outlined the importance of considering the needs of employers who employ reservists;
“… we need to make sure that it (the Act) achieves these objectives
without placing an excessive burden on employers…”
1.2. Hence, this submission outlines the ### concerns regarding the Act, and raises issues regarding potential changes which the Reserve Service Protection Review Panel (the “Panel”) might be considering. This review is structured into two areas with general comments initially made followed by specific legislative concerns.
1.3. It is noted the ###, as an employer association, is only expressing concerns potentially affecting our members i.e., issues surrounding the employment of reservists. This report does not provide comment on non employment related issues under the Act such as eduction protection, partnership protection and financial liability protection.
2. General Comments
2.1. Generally, the Act provides legislative protection for reservists whilst seeking to balance the needs of employers. However, the Act must be reviewed in the context of other employer support programs and initiatives such the Employer Support Payment Scheme and various Defence Reserve Support Committees. Without these initiatives, the Act would arguable struggle to balance the needs of employers with the rights of reservists.
2.2. The ###’s main concern is that, where the Act is amended to strengthen the rights of reservists in connection with employment, the needs of employers are not adequately considered, especially the needs of small employers. In country Victoria it can be difficult to replace workers and if a reservist is on leave then attracting alternative labour can be problematic. To leave a job open can also create problems. In recent years, drought and the change in seasons can alter labour requirements. So while a job may be left open, other factors such as weather can jeopardise the continuation of the employment relationship. Employers should not be placed in a position of having to re engage a reservist if there is no job to come back to. We note sections 32(3) and 32(4) and fully support this section remaining in the Act. In the Act, it is not until a Court hearing that hardship can be addressed. Under such circumstances the employer would be faced with court costs to fight such a claim.
2.3. Small businesses seldom have adequate time and resources to interpret complex legislative requirements so an eduction campaign needs to be done to make employers aware of their responsibilities.
3. Specific Legislative Concerns
3.1. The ### supports limitations on maximum penalty units for contraventions of Divisions 2-5 of Part 4 of the Act to 30 penalty units, especially considering the definition of “discrimination in employment” is seemly very broad under Division 2 of the Act. Any significant change in the maximum penalty units would be an excessive financial deterrent for small employers to employee reservists.
3.2. We believe sections 25(3) and 26(4) of the Act provide flexibility and we do not support their exclusion from the Act.
3.3. Division 4 of Part 5 of the Act outlines the effect of defence service on particular employee entitlements. The ### is largely supportive of this Division, especially section 30(2) of the Act. However, the ### is concerned the Act is not clear regarding the accrual of particular entitlements whilst as employee is engaged in defence service. Specifically, sections 31(2)(a) and 31(3)(a)(b) is worrying. The ### strongly contests that employers become liable for annual and personal leave accrual whilst a reservists is on defence leave as the employer does not receive any benefit from the employee’s normal work during defence leave and may have to hire replacement workers.
3.4. We believe exceptions provided by sections 32(3) and 32(4) of the Act should be retained to balance the needs of employers. However, we propose section 32(3) be extended to section 32(2)(b) as the current Act effectively only provides the employer with only one choice; that being to terminate the employee’s employment in circumstances of redundancy i.e., the legislative does not allow the employer to reduce other employment terms such as changing employment status from full time to part time. Hence, the Act may actually apply to the detriment of the reservist.
3.5. We support section 33 of the Act regarding no further obligations on employers.
3.6. We believe seeking civil enforcement within a period of 3 years pursuant to section 73(3) is too long for the purpose of a reservists or ex reservist seeking remedy for being terminated after resuming employment under section 32 of the Act. In comparison, an employee has 21 days from the date termination took effect to apply to the Australia Industrial Relations Commission for relief in respect of termination of employment under section 643 of the Workplace Relations Act 1996 (Cth). We propose that consistency with the Workplace Relations Act 1996 (Cth) should apply. We are also concerned that section 73(4) of the Act allows an reservist or ex reservists to seek remedy for unfair dismissal under the Workplace Relation Act 1996 (Cth) where the said employee has already benefited from compensation for termination pursuant to section 32 of the Act. This ‘double dipping’ could place undue financial hardship on employers and in effect, act as a deterrent to employing reservists.
3.7. In relation to section 74 of the Act, we propose a penalty system apply regarding the termination of employment to allow for maximum monetary penalties to employers, especially considering the potential broad scope of section 32(2)(b) of the Act.
3.8. Sections 75(3)(c) and 75(3)(d) seemingly provides a “interested person” or a “a prescribed person acting on behalf of an interested person” with very strong legislative access for seeking mandatory injunctions, regardless of whether or not it appears to the Court the person is going to do the “the act” (s.71(1) of the Act). We propose the paragraphs be amended.
3.9. The ### would be opposed to changes to section 81(2) regarding maximum penalty units.
3.10. We are concerned that regulation 7(1) of the Act provides very broad powers to an “authorised person”, in effect the onus of proof seemingly lies with the employer to disprove the evidence of a “authorised person”.
3.11. We support regulations 14, 15 and 16 of the Act as this may promote quick settlement of disputes without creating unnecessary stress and financial hardship on employers. However, we note that such form of dispute resolution appears to be discretionary.
3.12. The ### would be opposed to any changes to regulation 19(1) regarding maximum penalty units. Further, we propose amendments requiring the Director to provide the employer with information concerning potential consequences of giving false or misleading information and/or not complying with the notice. Such information may encourage the employer to act promptly and hence resolve the dispute quickly.
3.13. Due to the potential serious consequences to employers for breaching the Act under Part 11, we believe that where “the person” waives his or her rights to provide a document in accordance with regulation 20(1), the waiver should be in writing to avoid any confusion regarding verbal agreement between the parties.
4. Conclusion
4.1. The objective of this submission was to outline the ###’s concerns regarding the employment of reservists. A number of general and specific legislative concerns were raised.
4.2. In summary, the ### is deeply concerned that employers, especially small employers, can be burdened with significant costs of defending Court action under the Act. Further, the issue of whether an employee is entitled to accrue personal and annual leave whilst on defence leave is also very troubling.
4.3. It was noted the ### supports the current capping of maximum penalty units under various provisions of the Act, and does not support any proposal to increases such maximum penalty units. We also believe the Act needs to be reviewed in context of other programs such as the Employer Support Payment Scheme which arguable seeks to balance the rights of reservists with the needs of employers.
4.4. In conclusion, the ### is concerned that where the Act is strengthened to protect the rights of reservists, the needs of small employers in the agricultural industry are not adequately considered and/or protected under the Act.
