| 3.1 | On the day this Determination commences, Defence (Employer Support Payments) Determination 2005, as amended, is repealed.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 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 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. |
3A | Application and transitional – amendments commencing 1 December 2014 |
| 3A.1. | In relation to a person who provided defence service before 1 December 2014, the amendments made by Defence Determination 2014/55, Reserve employer support payments – amendment, apply only to claims to which both the following circumstances apply: |
| | a. | The claim is made on or after 1 December 2014. |
| | b. | The claim relates to a period of defence service that starts on or after 1 December 2014. |
| 3A.2. | If a claim deals with multiple periods of defence service, any period of service which commenced prior to 1 December 2014 must be decided under the rules as they were in place prior to the commencement of Defence Determination 2014/55. |
| 3A.3. | Despite subsections 1 and 2: |
| | a. | Administrative decisions currently in place relevant to a claim can continue to be relied upon until a fresh decision is required or made under the Determination as amended. |
| | b. | If a claim was made before 1 December 2014 and notice of the decision on the claim was not received by the claimant before that date, or notice of the decision on the claim was received by the claimant after 31 October 2014 and before 1 December 2014, sections 56, 57 and 58, as in force on or after 1 December 2014, apply in relation to the decision, and to later decisions made in relation to the claim. |
| | c. | If a claim is made on or after 1 December 2014 and the claim relates to a period, or periods, of defence service that started before that date (whether or not the claim also relates to a period, or periods, of service that started on or after that date), sections 56, 57 and 58, as amended by Defence Determination 2014/55, apply in relation to the claim. |
| 4. | To avoid doubt, the amendments made by Defence Determination 2014/55 apply to a person who first provides defence service on or after 1 December 2014. |
| | |
| 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 November of the preceding year as published by the Australian Bureau of Statistics. |
| business | includes a sole trader business, a company, a partnership and a trust, as relevant to a claim. |
| claimant | includes an employer and a self-employed member, as relevant to a claim. |
| 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 paragraph c. |
| 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 | has 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. |
| 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. Exception: The power to approve a class of claims under section 46 cannot be delegated. See: Section 46, Approval of cost effectiveness for classes of claims. |
| 5.2 | A Service Chief may make any decision under subsections 56.5 or 56.6 and section 56A and may only delegate those powers to: |
| | a. | An officer at or above the rank of Brigadier (or equivalent rank). |
| | b. | An Australian Public Service employee at or above the classification of Senior Executive Service Band 1. |
| | Notes: 1. A Service Chief or their delegate, exercising power vested in them under subsection 2 is sometimes called a senior review officer in this Determination. 2. The power to review a decision includes the power to make a decision on that subject in accordance with the review provision. An additional delegation of the power to the senior review officer under subsection 5.3 is not required. Related Information: Part 5 Review |
| 5.3 | The Service Chief may delegate any of their other powers under this Determination, except the power to approve a class of claims, to: |
| | a. | An officer at or above the rank of Lieutenant-Colonel (or equivalent rank). |
| | b. | An Australian Public Service employee at or above the classification of Executive Level 1. |
| | See: Section 47 provides that a claimant must be notified in writing of a decision to refuse a claim made under this Determination. |
| 5.4 | The Service Chief may give written directions about how a delegation made under this section is to be exercised. |
5A | Decision-making |
| 5A.1 | A decision-maker may refer a claim to the Director Employer Support Payment Scheme for advice on any matter relating to the claim. |
| 5A.2 | A decision-maker must not act to decide any matter relating to a claim if they have an interest in the employing body or related entity. Related Information: Defence Instruction (General) 25-6, Conflicts of interest and declarations of interests. |
| | |
| 1. | Calculate the number of hours that the member worked in the employment over the 26 week period. |
| 2. | Work out the number of days of absence due to: a. a public holiday; b. use of personal leave entitlements, which may include: i. accrued annual leave, up to a maximum of 4 weeks. ii. sick leave, up to a maximum of 2 weeks. Note: If the member took more than the maximum of absence, that period of the absence is not excluded. |
| 3. | Work out the number of days of absence when the member was on Defence leave, up to a maximum of 4 weeks. These are days when the member was granted leave (however described), whether paid or unpaid, in order to undertake Defence service. Note: If the member took more than the maximum of absence, that period of the absence is not excluded. |
| 4. | The total of days from steps 2 and 3 are called excluded days. Take the total excluded days from steps 2 and 3 and mark them on a calendar. Then count each excluded day as 0.2 of a week, stopping when 1 is reached in any calendar week and continuing to count in the next calendar week. Stopping at 1 in any week means that a period of 6 or 7 consecutive days of absence cannot be counted as more than 1 week. This will give the number of weeks to exclude from the 26 weeks. |
| 5. | Subtract the number of excluded weeks from the 26 week period. The result is the remainder period. |
| 6. | Divide the number of hours that the member worked in the employment over the 26 week period by the remainder period. The result is the member’s normal weekly working hours. |
| | | |
| 1. | a continuous period of at least 3 months but less than 26 weeks, immediately before the period of absence on Defence service to which a claim relates | the weeks worked in the period. |
| 2. | a. a continuous period of at least 26 weeks immediately before a period of continuous full-time service; and b. immediately after that continuous full-time service, worked in their employment for a period of at least 3 months but less than 26 weeks immediately before the period of absence on Defence service to which a claim relates | the weeks worked under paragraph 2.b of this item. |
| 3. | a. a continuous period of at least 26 weeks that ended up to 2 years before the start of a period of continuous full-time service; and b. immediately after that continuous full-time service, worked in their employment for a period of less than 3 months immediately before the period of absence on defence service to which a claim relates | if the claim does not relate to the period of continuous full-time service, the 26 weeks worked under paragraph 3.a of this item. |
| 4. | a. a continuous period of at least 3 months but less than 26 weeks that ended up to 2 years before the start of a period of continuous full-time service; and b. immediately after that continuous full-time service, worked in their employment for a period of less than 3 months before the period of absence on defence service to which a claim relates | if the claim does not relate to the period of continuous full-time service, the number of weeks worked under paragraph 4.a of this item. |
| 5. | a. a continuous period of at least 3 months that: i. ended no more than 2 years before the start of a period of absence on Defence service to which a claim relates; and ii. was between 2 periods of continuous full-time defence service; and b. the member finished their most recent period of continuous full-time service less than 3 months before the period of absence on defence service to which a claim relates | if the claim does not relate to period of continuous full-time Defence service before it, the most recent period of work that could be described by paragraph 5.a of this item. |
| | | | | |
| 1. | at least 35 hours per week | not specified as the full-time hours each week for that work | at least 28 hours each week | full-time work. |
| 2. | at least 35 hours per week | specified as the full-time hours each week for that work | at least 28 hours each week |
| 3. | less than 35 hours per week | specified as the full-time hours each week for that work | at least 80% of the number of hours specified as full-time work hours |
| 4. | less than 35 hours per week | not specified as full-time hours | at least 35 hours each week |
| 5. | at least 35 hours per week | specified as the full-time hours each week for that work | less than 28 hours each week | part-time work. |
| 6. | less than 35 hours per week | specified as full-time hours | less than 80% of the number of hours specified as full-time work hours |
| 7. | less than 35 hours per week | not specified as full-time hours | less than 35 hours each week |
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| 1. | Salary paid in respect of defence service as a member |
| 2. | A non-cash benefit that forms part of a package of remuneration, including: a. contributions to superannuation, made in accordance with a salary sacrifice or other arrangement, that exceed the amount that would be paid under the Superannuation Guarantee (Administration) Act 1992; and b. an amount deducted from a member’s salary or wages in accordance with a salary sacrifice or other arrangement |
| 3. | An amount related to, or derived from, the depreciation of a business asset |
| ..things that are not income |
| 4. | An amount of pension |
| 5. | Potential income or projected income |
| 6. | For a claim relating to an income year—a profit made, or a loss incurred, in a previous income year |
| 7. | A capital gain or loss, including a gain or loss relating to: a. the sale of plant, equipment or other property; or b. the sale of shares or an investment; or c. the sale of a business or company, or a significant part of the business or company; or d. a transaction relating to foreign currency that is treated as a capital gain for taxation purposes |
| 20.1 | A member receives an amount of income from a business or a company if all of the following conditions are met in relation to an amount. |
| | a. | The amount is not the income, profit, loss or turnover of the business or company itself (unless it is the profit or loss of a sole trader). |
| | b. | The amount relates to the activities of the business. Exception: If the activities of the business are investment of accumulated wealth or investment in a superannuation fund, then the related amount is not income for the purpose of this Determination. |
| | c. | Any additional requirements in this section are met. |
| 20.2 | If the member receives the amount from the sale of stocks or assets, the amount is only income received from the business if the stocks or assets were owned by the business or company. |
| | Example: If a member identifies income received from the sale of shares as part of the member’s income from the business:
a. the share trading must have been conducted by the business or company that provides the member’s principal source of income; and
b. the shares must have been owned by the business or company; and
c. the business or company must have provided the income from the share trading to the member. |
| 20.3 | If the member is a director of a company or is employed by a company in which the member has a controlling interest, the following conditions apply in relation to income. |
| | a. | An amount is income from the business only if it is attributable as the member’s income from the company. |
| | b. | Fees, emoluments and dividends are part of the member’s income from the company. |
| | c. | An amount paid as a repayment of a loan is not part of the member’s income from the company. |
| 20.4 | An amount of distribution of the net income of a trust is the member's income from the trust if both of the following circumstances apply in relation to the amount. |
| | a. | It is the amount that would be declared by the member as personal income in the member’s tax return. |
| | b. | The member is employed by a trust or the trustee of a trust and holds any of the following powers or positions. |
| | i. | They are a trustee of the trust. |
| | ii. | They have power under the trust deed to remove the trustee or trustees of the trust and appoint another trustee or trustees. |
| | iii. | If the trustee is a company— they are a director of the company or has a controlling interest in the company. |
| 20.5 | If the member is a partner in a business that is a partnership, an amount is only the member's income from the partnership if it is the member’s share of the net income of the partnership that would be required to be shown in the partner’s personal tax return as a partner’s share: |
| | a. | whether the income is a profit or a loss; and |
| | b. | whether or not the partnership has distributed the income. |
| 20.6 | If the member is a sole trader, an amount is only the member's income from the business if it is the net income or loss from the business that would be required to be shown in the member’s personal tax return. |
| 21.3 | A document or information mentioned under item 3.1, 3.2 or 3.3 of the table in subsection 1 may be used for a part of a year, with the following effects on calculations. |
| | a. | Calculations made in support of a claim using the document or information must be made on a proportional basis, by reference to a financial statement or income tax return mentioned in items 3.1 or 3.2. |
| | b. | If no financial statement or income tax return mentioned in items 3.1 or 3.2 of the table is available, calculations that are made using the document or information must be made on a proportional basis using the same methods and principles that are intended to be used in preparing the member’s income tax return for the income year in which the defence service was undertaken. |
| | c. | The decision-maker may approve or reject a submission from the member to use, in support of a claim, a statement that is not calculated on a proportional basis or that was prepared using methods or principles other than those mentioned in paragraph b. |
| 21.4 | If a self-employed member wishes to continue to rely on evidence of principal source of income, the member must provide updated evidence, as detailed in subsection 1, 2 years after the period covered by the previous evidence. Example: The member has provided principal source of income evidence covering the period 1 July 2013 to 30 June 2014. This can be relied upon for service between 30 June 2014 and 30 June 2016. For service after 30 June 2016 to be eligible for an employer support payment, updated principal source of income evidence would be required. |
| 21.5 | A decision-maker may treat evidence of principal source of income provided by a self-employed member as not being current, if the information contained in it was last up-to-date more than 3 months before the service to which the claim relates, and may require the member provide up to date information. Example: The member has submitted a claim, with supporting principal source of income evidence, for service in November 2014. The principal source of income evidence covers the period 1 July 2013 to 30 June 2014. As this period finishes more than 3 months before the service, the decision-maker may accept the evidence or may require more up to date information be provided. |
| 21.6 | If a self-employed member relies on a document or information mentioned under item 3.3 of the table in subsection 1, the member must provide both of the following documents as substantiation, in the timeframes described. |
| | a. | The member’s tax return must be provided as soon as practicable. |
| | b. | The notice of assessment in relation to the member’s tax return must be provided as soon as practicable after it has been issued by the Commissioner of Taxation. |
| 21.7 | If the member fails to respond to a requirement to substantiate evidence within a specified period or provides a response that does not, in the opinion of the decision maker, wholly substantiate the evidence; then the decision maker may: |
| | a. | if the claim has not already been paid: |
| | i. | pay so much of the claim as he or she considers reasonable; or |
| | ii. | reject the claim. |
| | b. | if the claim has been paid: |
| | i. | require repayment of so much of the claim as he or she considers reasonable; or |
| | ii. | require full repayment of the claim amount as a debt owing to the Commonwealth. |
| | | See: Rule 11, Public Governance, Performance and Accountability Rule 2014. |
| 27.1 | For the purpose of calculating an absence on Defence service, a period of continuous service is taken to include public holidays, authorised stand-downs and days on which the member is unable to work due to illness or injury. Note: Separate provisions cover public holidays, authorised stand-downs and sick days. Inclusion of these days in calculating an absence on Defence service does not mean that these days are counted towards the qualifying period requirement or eligible for an employer support payment. |
| 27.2 | In order to count only the time for which the member would have been absent from their employment due to their Defence service, the following periods are not counted towards a period of absence on Defence service. |
| | a. | Any period of leave that is not military leave or leave without pay granted for the purpose of the Reserve duty. |
| | b. | Any day on which the member performed work for their employer or for their business, unless it was done in any of the following circumstances. |
| | i. | Performed in an emergency. |
| | ii. | Performed with a written permission from the member’s Commanding Officer or Branch Head, which specifies what work the member is authorised to perform and that the days on which the member performs such work may be counted towards a period of absence on Defence service for the purpose of eligibility for employer support payments. Note: Attempts by members to continue to run businesses in off-duty hours, while meeting their Defence obligations, and to also be entitled to employer support payments should not be approved under this section. |
| | c. | Any day on which sessional fee was payable to the member. |
| 33.1 | Service that meets any of the following descriptions can be counted as eligible service for the purpose of calculating a qualifying period or an employer support payment. |
| | a. | Ordinary reserve service undertaken as part of normal peace time training or service. |
| | b. | Voluntary continuous full-time service to which protections set apply for either of the following reasons. |
| | i. | A special undertaking has been made in accordance with subsection 12 (1) of the Defence Reserve Service Protection Act 2001. Related Information: This undertaking would apply the employment, partnership and education protections contained in the Act. |
| | ii. | The employer has undertaken that employment and partnership protection is to be provided to the employee at or above the standard of protections set out in Parts 5 and 6 of the Defence Reserve Service Protection Act 2001. |
| | | See: Defence Reserve Service Protection Act 2001 |
| | c. | Continuous full-time service rendered as a result of an order under section 51A, 51B or 51C of the Defence Act 1903 (whether or not the member is also subject to an order under section 50D of that Act). |
| | d. | Continuous full-time service rendered as a result of an order under section 50D of the Defence Act 1903 in relation to: |
| | i. | a member of the Reserve Response Force; or |
| | ii. | a civil emergency. |
| | Note: To avoid doubt, only service rendered as a result of an order under section 50D of the Defence Act 1903 that is also described under subsection 1 counts as eligible service. |
| 33.2 | Service by a participant in the Australian Defence Force Gap Year program is never eligible service for the purpose of calculating a qualifying period or an employer support payment. |
| 35.1 | An employer or self-employed member is eligible for a payment because of the member’s absence on defence service if the following conditions are met. |
| | a. | The absence occurs after the qualifying period is met in a financial year. |
| | b. | The absence is for a period of at least 5 continuous days, which may include, at the place in which the defence service is being undertaken: |
| | i. | one or more public holidays. |
| | ii. | one or more days on which the member is stood-down. |
| | iii. | one or more days on which the decision-maker is satisfied that the member was unable to perform required or scheduled work for Defence because of an illness or injury. |
| | c. | The defence service is eligible service. See: Division 4, Rules about service |
| | d. | The employer has released the member to undertake the defence service on military leave or leave without pay. |
| 35.2 | If the period of absence is immediately after the qualifying period for a financial year but is less than 5 continuous days, it is taken to meet the basic condition in paragraph 1.b. |
| | A day of absence on Defence service cannot be counted for the purpose of eligibility for payment of an employer support payment or for counting towards the annual qualifying period requirement if any of the following circumstances apply to the member on that day. |
| | a. | The member is on leave on the same day from the employer, for a reason other than the Defence service, whether paid or unpaid. Examples: annual leave, personal or carer’s leave, leave for an illness or injury that is not also counted under the basic conditions or the extended payment rules, family leave, bereavement leave, compassionate leave, cultural leave, parental leave, maternity or adoption leave or long service leave. |
| | b. | The absence is on a public holiday, unless the member undertook a whole day of Defence service on the day. |
| | c. | The absence is on a day on which the member is stood down from their employment for the whole day. |
| | d. | The absence is on a day on which: |
| | i. | The member had an illness or injury. |
| | ii. | The member did not work for the whole of the day. |
| | iii. | The basic conditions or the extended payment rules would not apply to count it for the purposes of a payment. See: Section 41, Extended eligibility ‑ if illness or injury results from Defence service
Section 42, Extended eligibility – member dies on Defence service |
| |
| 1. | The member does not complete any period of defence service that is mentioned in the claim for employer support payment. |
| 2. | The relevant business ceases to trade or operate on any basis, whether temporary or permanent. |
| 3. | The member ceases to be an employee of the employer. |
| 4. | The member ceases to be employed by a trust or the trustee of a trust. |
| 5. | The relevant business is disposed of. |
| |
| 6. | The member ceases to have a controlling interest in the relevant company or business. |
| 7. | The member ceases to be a sole trader, or to be employed by a family member who is a sole trader. Example: A member who is a sole trader, but then sets up a company to operate the business, must advise that he or she has ceased to be a sole trader. |
| 8. | The member ceases to be a partner. |
| |
| 9. | The member becomes a director or partner in the relevant business. |
| 10. | The member gains a controlling interest in the relevant company or business. |
| 41.1 | This section applies if a decision-maker is satisfied that the following conditions apply to the member. |
| | a. | The member suffers an injury or illness as a result of the member’s defence service; |
| | b. | The illness or injury could reasonably be expected to be accepted as a service injury or service disease in accordance with the definitions of those terms set out in the Military Rehabilitation and Compensation Act 2004; |
| | c. | The illness or injury prevents the member from: |
| | i. | performing the full duties of their work for at least 5 days; or |
| | ii. | returning to work for at least 5 days. |
| 41.2 | The employer or self-employed member may make a claim, in writing, for an amount of employer support payment in relation to the period of the illness or injury. |
| 41.3 | For an employer claimant, the decision-maker may approve the claimant to continue to be eligible for an employer support payment until the day any of the following circumstances apply. |
| | a. | The member is reasonably able to return to full duties. |
| | b. | The member ceases to receive medical treatment for the injury or illness from the Joint Health Command and ceases to receive compensation payments from the Department of Veterans’ Affairs in relation to the injury or illness. |
| | c. | The member’s claim is rejected (after any appeals are finalised) by the Department of Veterans’ Affairs. |
| 41.3A 41.3B 41.4 41.5 | For a self-employed member claimant, the decision-maker may approve the claimant to continue to be eligible for an employer support payment until the day any of the following circumstances apply: a. The member is reasonably able to return to full duties. b. The member commences to receive compensation payments from the Department of Veterans’ Affairs in relation to the injury or illness. c. The member’s claim is rejected (after any appeals are finalised) by the Department of Veterans’ Affairs. If either of the following circumstances apply, then subsection 41.3 applies and subsection 41.3A does not apply to a self-employed member claimant. a. The member is a partner in a partnership that is not a family partnership. b. The member is a director of a company and does not have a controlling interest in that company as detailed in Division 2 of Part 2. Note: Section 12A notes that a payment to a self-employed member is made to the member in his or her capacity as an employer, for and on behalf of the business. The amount of employer support that may be paid is to be calculated as if the period of absence from employment due to the illness or injury was absence on defence service, limited to the 52-week maximum. If the member is able to perform duties related to their employment but the illness or injury prevents the member from performing the full duties of their work, the decision-maker may determine a weekly rate of employer support payment to be paid which is less than the AWOTE. |
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| 52.1 | For this section, a substantial financial loss must be a financial loss that: |
| | a. | Is, or will be, incurred in the ordinary course of the business of a claimant because of the absence of a member on defence service. |
| | b. | Is not: |
| | i. | a loss of a remote, speculative or indirect kind; or |
| | ii. | a loss that has not yet occurred, and is not certain to occur; or |
| | iii. | a loss of a personal nature or incurred in a personal capacity; or |
| | iv. | a loss that is incurred, or that may be incurred, otherwise than in the prudent and reasonable conduct of the business. |
| 52.2 | A claimant may apply to the decision-maker in writing for an additional amount of employer support payment, if the conditions in all of the following paragraphs are met. |
| | a. | The claimant believes that they have suffered, or will suffer, hardship or loss because of the absence of an employee on continuous defence service. |
| | b. | The amount of the employer support payment payable in relation to a particular claim period is insufficient to prevent substantial financial hardship or substantial financial loss. |
| | c. | A sessional fee is not payable in relation to the member’s defence service. |
| 52.3 | An application under subsection 2 must be made as soon as reasonably practicable after the first day of the claim period to which the application or claim relates. |
| 52.4 | Subject to subsection 3, the application may relate to any number of claim periods. |
| 52.5 | A decision-maker may only approve the application if satisfied of the following matters in relation to any relevant claim period. |
| | a. | The claimant has suffered, or will suffer, substantial financial hardship or substantial financial loss caused by the absence of the claimant’s employee on defence service (or caused by absence due to injury or illness resulting from the member’s defence service) during the claim period. |
| | b. | It was not possible in the circumstances for the claimant to make arrangements to avoid the substantial financial hardship or substantial financial loss. |
| | c. | The claimant has made, or is making, a reasonable effort to avoid or limit substantial financial hardship or substantial financial loss. |
| | d. e. | Any allowances the claimant has received, or is eligible to receive, under any other Determination made under section 58B of the Act are insufficient to avoid substantial financial hardship or substantial financial loss. The claimant applied for the additional payment as soon as reasonably practicable after becoming aware that he or she would suffer substantial financial hardship or substantial financial loss because of the employee’s absence during the claim period. |
| 52.6 | The additional employer support payment must be paid to the claimant as soon as possible after an application is approved. |
| 53.1 | A Service Chief may recommend to the Chief of the Defence Force that a capability employer support payment be payable, if both the following conditions are met. |
| | a. | An employer support payment is payable in accordance with this Determination. Exception: If the employer support payment is not payable only because a sessional fee is payable for the member's Defence service, then this condition is taken to be met. |
| | b. | The payment would facilitate the provision of a capability required by the Defence Force that involves a specified member, class or classes of members in the Reserves. |
| | | Note: Employer support payment to which this subsection applies is in addition to any employer support payment permitted under this Determination. |
| 53.1A | If satisfied that the following circumstances exist, Head Cadet, Reserve and Employer Support Division may recommend to the Chief of the Defence Force that a capability employer support payment be payable. |
| | a. | The capability relates to more than one Service. |
| | b. | The conditions in subsection 53.1 are met. |
| | c. | The Service Chiefs involved with the provision of the capability required by the Defence Force have been consulted and support the recommendation that a capability employer support payment be payable if a claim is made in relation to that capability. |
| 53.2 | A Service Chief or Head Cadet, Reserve and Employer Support Division may also recommend to the Chief of the Defence Force that an employer support payment should be payable, if all the following conditions are met. |
| | a. | A condition, limitation or restriction in this Determination that is specified in the recommendation cannot be met or has not been met. |
| | b. | The payment would facilitate the provision of a capability required by the Defence Force that involves a specified member, class or classes of members in the Reserves. |
| | c. | It is possible to administer payment as if the condition, limitation or restriction that has not or cannot be met: |
| | i. | did not apply |
| | ii. | were modified or replaced in a way specified in the recommendation. Example: A condition, limitation or restriction may relate to the member’s principal source of income or a business related to the member. Non-example: The employer has ceased to trade. There is no employer to pay and so the payment cannot be administered within the scope of the determination. |
| 53.3 | If the Chief of the Defence Force approves a recommendation, the approval must specify the following matters. |
| | a. | The member, or class of members in the Reserves to which the additional payment relates. |
| | b. | Any conditions, limitations, or restrictions that are specified as being modified, replaced or not applicable, in relation to the member or class of members. |
| | c. | The Chief of the Defence Force may make the approval or payment subject to limits to which the additional payment is subject, including limits on any of the following. |
| | a. | The period in which the capability employer support payment is payable |
| | b. | The maximum amount of capability employer support payment in relation to any claim. |
| | c. | The number of claims that may be made in relation to a part, class or member specified in the approval. |
| 53.4 | The Chief of the Defence Force must provide a copy of the approval to the Minister. |
| 53.5 | If the Chief of the Defence Force has approved a capability employer support payment, a claimant may apply for the payment in the same way as normal, subject to any modified, replaced or inapplicable conditions. |
| 56.1 | An claimant for an employer support payment may request a decision-maker to review their decision, within 30 days of receiving the notice of a decision. Note: A decision-maker can always be asked to reconsider their own decision, if new information has become available relevant to the decision. This rule limits the time for requesting a reconsideration. |
| 56.2 | The decision-maker may accept a later request under subsection 1, if they consider it is reasonable to do so. Example: The member was injured in an accident and so could not write a request until a later date. |
| 56.3 | The redress of grievance system established under the Defence Force Regulations 1952 does not apply in relation to employer support payments. Note: This is because the benefit is payable to employers, it is not a benefit paid for service. |
| 56.4 | Within 30 days of receiving a notice of a decision or a notice of a reconsideration of a decision under subsection 1, a claimant may request a senior review officer to review the decision. The request must be in writing and must set out the reasons for making the request. |
| 56.5 | The senior review officer may, if they consider it reasonable, accept a request under subsection 4 despite the fact that it was made more than 30 days after receipt of a decision. |
| 56.6 | In relation to a request for review made under subsection 4, the senior review officer must reconsider the claim and the earlier decision relating to the claim and must, in writing: |