Information For Employers

Information in relation to the call out order and Operation BUSHFIRE ASSIST 2019-2020, and your obligations as an employer, can be found in the sections below.

Operation BUSHFIRE ASSIST 2019-2020

At the request of the Government, in order to support national disaster relief efforts, the Governor-General, His Excellency General the Honourable David Hurley AC DSC (Retd), issued a Call Out Order: Operation BUSHFIRE ASSIST 2019-2020 with effect from 4 January 2020.

The call out was issued by the Governor-General on advice of the Minister for Defence in accordance with the civil emergency and disaster relief circumstances set out in s.28 of the Defence Act 1903 (Cth). You can read a copy of the 'Order to Call Out the Australian Defence Force Reserves' here.

On subsequent advice from the Government, the Governor-General (on 26 January 2020) revoked the compulsory call out of the ADF Reserves. This took effect after 7 February 2020.

State and Territory governments remain the primary responders for disasters within Australia – the call out of Reservists was to enhance the ADF capacity to respond to multiple or sequential large-scale requests for support.

The call out focused on the 4th, 5th, 6th, 9th and 17th Brigades who formed the basis of three Joint Task Forces.

Reservists involved in the Reserve call out form part of a Joint Task Force in their respective state and provide assistance according to their skill set. As they are not ADF trained firefighters; this does not include firefighting duties.

Defence Service is protected under the Defence Reserve Service (Protection) Act 2001, and employers must release their employees from their civilian employment to undertake service without being compelled to use any type of paid or unpaid leave during the period of service.

Defence is ensuring that the hundreds of Reservists around Australia who are employed by emergency response agencies or volunteer organisations are exempt from the call out.

Responsibilities and Obligations

Members subject to the call out will be SERCAT 3 to 5 on SERVOP C (CFTS) and as such will be eligible for the relevant remuneration and conditions of service. Salary and superannuation will be payable for all personnel; and Service Allowance will be payable for members below the rank of LTCOL(E). Taxation will be applied. Some conditions will be determined based on individual circumstances and subject to meeting specified eligibility criteria. Any questions regarding remuneration and conditions of service should in the first instance be directed to the command chain or to housing.policyinquiry@defence.gov.au

Is Your Employee Exempt?

Exemptions from participating in the call out

The Chief of the Defence Force (CDF) has directed that any members of the Reserves covered by the call out order who are engaged in emergency services are not bound to render service. These include:

  • Volunteer Fire Services
  • State Fire and Rescue Services
  • State Emergency Services
  • Ambulance Services
  • Paramedic Services
  • State and Federal Police Forces
  • South Australia Health
  • NSW Parks and Wildlife
  • Contracted civilian Air Support/Air Lift Services
  • Emergency Repair services (Power/Water/Communications Company etc)
  • Ancillary support services (Red Cross/Salvation Army/Life Line etc)

The nature of the call out means that Reservists from these identified agencies may still receive a call to parade at their unit however, if this occurs Reservists should discuss this immediately with their chain of command and confirm their exemption.

It is anticipated that there will be a number of other Reservists who have been called out that are unable to provide support in this instance. In this case exemptions will be considered on a case-by-case basis by their chain of command.

There are other employers, such as medical facilities, who have extenuating reasons why they cannot release a Reservist and they may also seek an exemption. In the first instance we recommend employers discuss their concerns with the Reservist who can then speak with the chain of command. If this option is not suitable, employers can contact 1800 DEFENCE (with the relevant details of their Reservist) and Defence will provide a response.

Exemptions from the Employer Support Payment Scheme

Employers and self-employed Reservists may also access financial assistance through the Employer Support Payment Scheme (ESPS) for periods where a Reservist is absent from their civilian workplace during the call out. In most cases the weekly rate is $1,604. 90 for a full-time employee. For medical specialists this rate will be higher.

To increase access to these payments for employers of Reservists who have been called out, the following eligibility provisions have been set aside:

  • The annual qualifying period of two weeks unpaid service each financial year has been waived.
  • The minimum service period of five days has been reduced to two days.

For employers claiming ESPS payments for their employee:

  • The minimum period of employment (three months) has been waived.

For self-employed Reservists claiming ESPS payments during this absence:

  • The self-employed member’s business does not need to provide the member’s principal source of income or principal source of employment for the previous 12 months.

Standard eligibility criteria will apply to all ESPS claims once the call out is revoked.

For more information on the ESPS, please click here.

To submit an ESPS claim, please click here.

Return to Employment

In 2001, the Australian Government introduced legislation to protect Defence Reservists undertaking various forms of Reserve service.

The Defence Reserve Service (Protection) Act 2001 makes it an offence for an employer to discriminate against, disadvantage, hinder or dismiss an employee or prospective employee for rendering Defence service. Protections also apply to contractors and partners and in certain circumstances to students enrolled in a course of instruction at an Australian education institution.

A Reservist employee and their employer are encouraged to remain in communication about when the employee will return to work, with the onus on the employee to engage with the employer about resuming work following Defence service.

Generally the Reservist employee must, no later than 30 days after ceasing to render Defence service, apply to their employer to resume work.

In practice, it is likely many employers will accept the application to resume work via a phone call or email as part of the continuing employer-employee engagement. This is encouraged. However, an employer may require an application in writing from an employee. There is guidance on this for Reservists at https://defencereservessupport.gov.au/call-out-orders/information-for-reservists/

The employee must be reinstated in the same capacity and on terms and conditions of employment (including remuneration) at least as favourable as those that would have applied if the Defence service had not occurred.

This is only a partial guide and may not apply in all cases. Legislation applying to employment protection is in Part 5 Division 3 of the Defence Reserve Service (Protection) Act 2001 https://www.legislation.gov.au/Details/C2019C00187

It is worth noting that Defence is likely to require the ongoing service of many Reservists in support of Operation Bushfire Assist even once the call out is revoked. Defence service after the call out is revoked continues to be protected, however Defence understands that the continued absence of a Reservist employee from the workplace is likely to be a significant impost. Where possible Defence will work with employers to negotiate a mutually beneficial arrangement.

Employer FAQs

The below is a list of frequently asked questions (FAQs) in relation to Operation BUSHFIRE ASSIST 2019-2020. These have been compiled to provide further information for employers. If your question is not answered below, please contact 1800 DEFENCE (1800 333 362).

Q: What is a Defence call out?

A: Section 28 of the Defence Act 1903 permits the Governor-General to call out Reserves for continuous full-time service.

A call out order may be made under this section of the Act in circumstances (whether within or outside Australia) involving one or more of the following:

(a) war or warlike operations;

(b) a time of defence emergency;

(c) defence preparation;

(d) peacekeeping or peace enforcement;

(e) assistance to Commonwealth, State, Territory or foreign government authorities and agencies in matters involving Australia’s national security or affecting Australian defence interests;

(f) support to community activities of national or international significance; and

(g) civil aid, humanitarian assistance, medical or civil emergency or disaster relief.

Q: When was the call out made?

A: The call out order for some ADF Reserves was made by the Governor-General, acting on the advice of the Government, on 4 January 2020

Q. Has the call out been revoked?

A: Yes. On advice from the Government, the Governor-General revoked the compulsory call out of the ADF Reserves with effect 7 February 2020. This was announced on 26 January 2020.

Q: What does revocation of the call out mean?

A: The revocation of the call out means ADF Reserve personnel who were part of the compulsory call out may be able to return to their jobs, families, communities and personal commitments from 8 February 2020 if they wish.

The ADF will continue to directly support bushfire affected communities with its full-time forces and volunteer Reserves, including some Reservists who were previously subject to the call out beyond 8 February 2020 as their skill sets may continue to be required to support Operation Bushfire Assist efforts.

Q: What are an employer’s obligations when a Reservist/employee is ready to return to work?

A: Reservist employees and their employers are encouraged to remain in communication about returning to work.

Defence Reservists have a number of legislative protections covered under the Defence Reserve Service (Protection) Act 2001. Specifically, the Act states

it is an offence for an employer to discriminate against, disadvantage, hinder or dismiss an employee or prospective employee for rendering Defence service. These protections also apply to contractors and partners and in certain circumstances to students enrolled in a course of instruction at an Australian education institution.

There is more information in the Return to Employment section above.

Q: Is there a link to the Defence Reserve Service (Protection) Act 2001?

A: The Defence Reserve Service (Protection) Act 2001 can be found at this link: https://www.legislation.gov.au/Details/C2019C00187

Q: Is assistance available for an employer to make contact with a Reservist/employee?

A: Yes. An employer needing assistance to contact a Reservist/employee, including after revocation of the call out, can call 1800 DEFENCE (1800 333 362) or complete the contact us section of this website.

Q: On return back to work what should I do as an employer for my employee?

A: Re-integrate your employee back into the workplace. Some may require more consideration than others during the re-integration period. The Reservist will have access to ADF care and support if required and access to the Department of Veteran’s Affairs.

Q: Is the Employer Support Payment Scheme available?

A: Yes. The Chief of Defence Force has waived certain provisions of the Scheme for the employers of Reservists and self-employed Reservists who have been called out on continuous full-time service to make accessing these payments easier.

Standard eligibility criteria applies to all other Reservists supporting Operation Bushfire Assist not on continuous full-time service and will apply to all ESPS claims from 8 February 2020..

Q: Are employers obligated to pay their employee/Reservist while they are absent on Defence service?

A: No. An employer is not obligated to pay an employee/Reservist while they are absent on Defence service in accordance with subsection 33(1) (a) of the Defence Reserve Service (Protection) Act 2001, subject to the conditions set out in subsection 33(2). 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. This can vary based on the Reserve leave policy held by the employer.

Q: What type of leave should an employee/Reservist use to undertake Defence service during the call out?

A: The Defence Reserve Service (Protection) Act 2001 details that there is no requirement for an employee/Reservist to take any type of paid or unpaid leave while absent on Defence service. 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).

Q: Does an employee/Reservist continue to accrue the likes of holiday and long service benefits with their employer while they are on call out?

A: This is subject to individual leave policy provisions and dependent upon long service leave legislation in the relevant state or territory.

Q: As an employer of a Reservist deployed on OP Bushfire Assist, can I discuss their contribution with their work colleagues?

A: Definitely. We can all be proud of the efforts and sacrifices being made by Reservists, their families and their employers during this difficult period. There are no national security issues surrounding this activity.

Q: How were the Reservists selected for the call out?

A: The majority of Reservists who have been called out to form the three Joint Task Forces or JTFs, are predominantly Service Category (SERCAT) 5 members of Reserves meaning they provide contribution and capability for a specified term and pattern of service. These Reservists will mainly be from the Australian Army’s 4th Brigade (4 BDE), 5th Brigade (5 BDE) and 9th Brigade (9BDE) and key specialists from the broader ADF Community. 4th Brigade is based in Victoria with depots in Melbourne and regional locations such as Ballarat. 5th Brigade is from New South Wales and ACT, with its headquarters in Holsworthy in Western Sydney and has soldiers that come from as far north as Tweed Heads to Wagga Wagga in the south. 9th Brigade has its headquarters in Keswick in Adelaide with units in metropolitan and rural South Australia and Tasmania.

Q: Is this service compulsory?

A: Yes. Section 29(1) of the Defence Act 1903 states that “A member of the Reserves covered by a call out order is bound to render continuous full-time service for the period specified in writing by the Chief of the Defence Force.” This means that all selected ADF personnel, directed by the Chief of the Defence Force were required to report to their ADF unit to undertake continuous full-time service.

Q: Are there exemptions?

A: Yes. The Chief of the Defence Force (CDF) has directed that any members of the Reserves covered by the call out who are engaged in emergency services including volunteer fire services, state fire and rescue services, state and federal police forces, ambulance services, emergency repair employees of power and communications companies, medical facilities and ancillary support services such as the Red Cross are not bound to render service. The nature of the call out means that Reservists in these roles will still receive a call to parade at their units. If this is the case they should discuss this immediately with their chain of command to confirm their exemption.

It is anticipated that there will be a number of other Reservists who have been called out that are unable to provide support in this instance. In this case exemptions will be considered on a case-by-case basis by their chain of command.

If an employer has extenuating reasons why they cannot release their employee then they can also seek an exemption. In the first instance we recommend that they discuss their concerns with their employee who can then speak with the Chain of Command. If option is not available to them then they can either complete the ‘contact us’ section of this website or call 1800 DEFENCE with the relevant details of their employee and their own contact details and Defence will provide a response.

Q: Why are emergency services exempt?

A: Emergency services staff who are Reservists are already providing vital and essential services to the community through their civilian roles.

Q: I am the employer of an emergency services employee. Why did they receive a letter?

A: The Reserve call out was conducted at the Reserve unit level. It is optional for Reservists to provide Defence with details of their civilian employment and if they have not provided their employer details to Defence then Defence would not have been aware that they were exempt when issuing the letter. All emergency services staff are exempt from the call out.

Q: Do I have to let my Reservist go?

A: Yes. Section 29(1) of the Defence Act 1903 states that “A member of the Reserves covered by a call out order is bound to render continuous full time service for the period specified in writing by the Chief of the Defence Force.”

The CDF has directed that any members of the Reserves covered by the call out who are engaged in emergency services including volunteer fire services, state fire and rescue services, state and federal police forces, ambulance services, emergency repair employees of power and communications companies and ancillary support services such as the Red Cross are not bound to render service.

If an employer has extenuating reasons why they cannot release their employee then they can also seek an exemption. In the first instance we recommend that they discuss their concerns with their employee who can then speak with the Chain of Command. If this option is not available to them then they can either complete the ‘contact us’ section of this website or call 1800 DEFENCE with the relevant details of their employee and their own contact details and Defence will provide a response within 24 hours.

Additionally, you may be entitled to receive Employer Support Payments to offset the costs associated you for the loss of the staff member during the period of service.

Q: Was this the first time the ADF Reserve has been called out?

A: 23 members of the Reserve were called out in November 2019 to test Defence’s ability to respond to a call out.

The ADF Reserve had never previously been called out.

While Reservists have been part of the nation’s coordinated response to disasters and other events of national significance – such as the 2019 Townsville flood and 1974 Cyclone Tracy – previous contributions of ADF Reservists were rendered on a ‘call for’ voluntary basis.

Q: Is the number of Defence personnel supporting the bushfire response unprecedented for a natural disaster in Australia?

A: For Operation Bushfire Assist, the ADF deployed more than 6500 personnel across seven states and territories. This includes approximately 3000 Reserve members.

This is significantly more than the number of ADF personnel assigned to previous natural disasters, such as:

  • 1974 - Cyclone Tracy, Northern Territory – 3000 fulltime and Reserve personnel, primarily Royal Australian Navy
  • 2009 - Black Saturday Fires, Victoria – 600 Reserve personnel, primarily Army
  • 2011 - Queensland Floods – 1200 fulltime and Reserve personnel, made up of personnel from all three services.

While Reserve members made strong contributions to these emergency responses, none of the disasters required a call out of the Defence Reserve.

Q: My employee has said that they plan to continue their Defence service after the call out has been revoked. Do I have to agree to this?

A: Defence is likely to require the ongoing service of many Reservists in support of Operation Bushfire Assist from 8 February 2020, after the Call Out was revoked. Defence service after this date continues to be protected, however Defence understands that the continued absence of a Reservist employee from the workplace may be a significant impost. Where possible Defence will work with employers to negotiate a mutually beneficial arrangement.

 

Last update: Friday, 21 February 2020

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