Reserve Service Protection
The Act makes it an offence for an employer to discriminate against, disadvantage, hinder or dismiss an employee or prospective employee for undertaking Australian Defence Force (ADF) Reserve service. The Act also enforces the compulsory release of reservists to undertake required training and service on operation or deployments.
The facilitation of the Act is overseen by Defence Reserves Support.
A reservist’s ability to render service in the ADF is protected under law. However, reservists have responsibilities and obligations to their employer and/or educational institution to ensure they are released as easily as possible for ADF service.
They can do this by:
- ensuring their employer and/or educational institution knows they’re an ADF reservist and the commitments involved
- considering the impact their potential absence will have on their employer’s business/organisation
- consulting and providing their employer and/or educational institution with a 6–12 month plan of their intended ADF service including any training commitments
- providing their employer and/or educational institution with as much advance notice as possible when they’re required to render ADF service
- providing written notification (ADF Form AE 380 – Tri-Service Notice of ADF Reserve Service) before and after their service, and whenever requested by their employer and/or educational institution
- effectively managing long or repeated periods of service, and
- providing their employer with information about the Employer Support Payment Scheme and other support programs.
If a civilian employer has a serious and significant concern about releasing a reservist employee, the reservist should engage with them and aim to find a solution. If a solution cannot be reached, the reservist should organise for their unit chain of command to discuss the concern directly with their employer.
If concerns remain unresolved at this level, the reservist or their employer should contact the Employer Support and Service Protection team for further guidance, information and support.
Organisations wishing to seek a full or partial exemption from releasing staff for ADF service for a limited period of time may do so by completing an Organisational Exemption Request Form and submitting it to YourCustomer.Service@defence.gov.au. Requests may take up to 28 days to process. The outcome of each request will be notified in writing.
The Defence Reserve Service (Protection) Act 2001 (The Act) provides a number of protections for Australian Defence Force (ADF) reservists.
The protection applies to:
- business partners
- students at an Australian educational institution
Under the Act, it is an offence for an employer to discriminate against, disadvantage, hinder or dismiss an employee or prospective employee for undertaking ADF service. It is also mandatory for employers to release their reservist employees when they are required to undertake training, deployments or other appointments associated with Defence service.
Employers are not required to pay reservists’ salaries while they are rendering Defence service, but may do so if they wish to provide additional support.
In relation to Defence service, the following actions by an employer or Australian educational institution may be in breach of the Act:
- refusal to release a reservist from work or studies to render Defence service
- refusal or expulsion from a partnership or terminating a contract
- dismissing or otherwise disadvantaging a reservist
- coercion into using accrued leave to render Defence service
- exclusion from a course or unit of study
- failure to make reasonable adjustments to a student reservist’s course of study
For further information you can call us on:
Frequently asked questions
However, all Reservists are encouraged to discuss their Reserve commitments with their employers 6–12 months in advance and/or provide their employers with as much notice as possible, before the Defence service.
It is important to note that while an employer may request an employee/Reservist provide them with a set period of notice prior to undertaking Defence service, the employee/Reservist is not obligated to satisfy such requests. Further, in accordance with section 26 of the Defence Reserve Service (Protection) Act 2001, it would be unlawful for an employer to not release the employee/Reservist on this basis.
Note: An employer who provides paid Military/Defence leave may require a set period of notice to access such a benefit and may refuse paid Military/Defence leave if permitted by that leave policy due to a period of notice not being met. However, the employer would still obligated to release the employee/Reservist to undertake the Defence service in accordance with the Defence Reserve Service (Protection) Act 2001.
It is important to note that while an employee/Reservist is not obligated to provide evidence of their Defence service, it is unlawful for an employer to not release the employee/Reservist in the absence of any such evidence in accordance with section 26 of the Defence Reserve Service (Protection) Act 2001.
Should the release of the employee/Reservist to undertake Defence service cause significant and serious impact to the business/organisation, the employer is encouraged to contact the employee/Reservist’s ADF Unit to discuss these concerns.
Note: The details of an employee/Reservist’s ADF Unit can be found on the AE380, Tri Service Training Notice (please ask your employee/Reservist for this if it hasn’t already been provided).
Further, it is unlawful under section 23A to harass, abuse or bully an employee/Reservist because they may render Defence service, are rendering Defence service or have previously rendered Defence service. If an employer committed such an offence, the employer may be subject to a civil penalty under subsection 17(1) (c).
The conditions set out in subsection 33(2), require an employer to pay wages to an employee/Reservist if the employee/Reservist was utilising a form of paid leave while also rendering Defence service.
Example: An employee/Reservist applies for two weeks paid annual leave and renders Defence service during this two-week period. The employee is obligated to pay the employee/Reservist’s wages during this period of Defence service as the Defence service does not relieve the employer from their paid annual leave obligations.
However, most employment contracts contain provisions that absences from the workplace require some sort of leave to be utilised. In the absence of any employment contract, during periods of Defence service and as a minimum, an employee/Reservist may be released from their employment on Leave Without Pay (LWOP).
Despite subsection 25(2), subsection 25(3) permits an employee/Reservist to utilise leave (such as annual leave) while absent on Defence service should the employee/Reservist agree to do so.
Requests from employees/Reservists to utilise leave balances while absent on Defence service should be considered in accordance with the employer’s leave polices and the Fair Work Act 2009.
Should the employer’s leave policies and the Fair Work Act support the refusal of such a request to utilise leave, it is important to note that the employer is still obligated to release the employee/Reservist to undertake the Defence service in accordance with section 26 of the Defence Reserve Service (Protection) Act 2001.
Example: An employee/Reservist is scheduled to undertake a two month period of Defence Service. If the employee/Reservist and the employer both agree to utilise annual leave during the period, such an agreement would be sanctioned.
However, if the employer has released their employee/Reservist during the period of absence on Defence service and the employer is paying wages to the employee/Reservist, they may be liable to make superannuation contributions in accordance with the Superannuation Guarantee (Administration) Act 1992.
At a minimum, where an employer releases their employee/Reservist to undertake Continuous Full-time Service (CFTS), subsection 30(2) (a) of the Defence Reserve Service (Protection) Act 2001 requires that the conditions of employment under which the employee/Reservist resumes employment after the period of absence be no less beneficial than they would have been is the member had been on Leave Without Pay (LWOP).
If LWOP is not defined within your Workplace Agreement or Enterprise Bargaining Agreement, please refer to your state/territory legislation to ascertain whether the employee/Reservist is entitled to accumulate leave while absent on LWOP as this may vary.
Where an employer releases their employee/Reservist on any type other type of leave (such as Paid Military/Defence leave, annual leave, Long Service Leave), despite being on CFTS, the employee/Reservist is entitled to accumulate leave as they normally would during such times the other type of leave is being utilised.
Example: An employee/Reservist is scheduled to deploy on CFTS for five months and requests Long Service Leave (LSL) for the first three months, and Leave Without Pay (LWOP) for the remaining two months. If approved, leave balances will continue to accumulate during the first three months where there employee/Reservist is utilising LSL. During the two months of LWOP, leave balances will only continue to accumulate if sanctioned by the applicable state/territory legislation
Other Defence Service
While employers are not obligated to remunerate employee/Reservists while they are released to undertake Defence service, subsection 31 (2) (a) of the Defence Reserve Service (Protection) Act 2001 requires that these periods of service are to be taken as paid service.
As a result, during these periods of absences on Defence service, the employee/Reservist will continue to accumulate leave as if they would have, should have they been present in the workplace.
As such, once the employee/Reservist returns to the workplace from their absence on CFTS or other Defence service, that period of absence must be counted as service with the employer for the purpose of calculating Long Service Leave entitlements.
Example: Employers are also duty-bound to count periods their employees/Reservists are absent from the workplace on Defence service, as employment for the purpose of calculating Long Service Leave entitlements in accordance with each state/territory’s Long Service Leave legislation. Please refer to your local state/territory legislation for further information.
Last update: Friday, November 19, 2021