Reserve service protection

The Defence Reserve Service (Protection) Act 2001 protects reservists undertaking various forms of Defence service.

The Act makes it an offence for an employer to discriminate against, disadvantage, hinder, prevent or dismiss an employee or prospective employee for rendering Defence service (including training).

The Act also includes employment, partnership, education, financial liability and bankruptcy protection for reservists in relation to their rendering of Defence service. Civil penalties may also apply for contraventions of the Act.

The facilitation of the Act is overseen by the Employer Support and Service Protection team, being part of ADF Reserves and Employer Support within Joint Support Services Division

Reservist’s responsibilities

A reservist’s ability to render Defence service is protected under law. However, reservists have responsibilities and obligations to their employer and/or educational institution to make sure they are released as easily as possible for Defence service.

• make sure their employer and/or educational institution knows they are a Reserve member and the commitments involved
• consider the impact their potential absence will have on their employer’s business/organisation
• consult with and where possible, provide their employer with a 6–12 month plan of their intended Defence service including any training commitments
• provide their employer and/or educational institution with as much advance notice as possible when they are required to render Defence service
• provide written notification (Form AE 380 – Tri-Service Notice of ADF Reserve Service) before and after rendering service, and whenever requested by their employer noting that exact dates can be provided when known
• effectively manage long or repeated periods of Defence service
• provide their employer with information about the Employer Support Payment Scheme (ESPS) and other support programs.

Employer’s responsibilities

If an employer has concerns that the absence of a reservist will cause serious and significant impact to the business/organisation, employers may contact and speak with the member’s ADF unit in an attempt to resolve the issue.

If concerns remain unresolved at this level, the reservist, their employer or ADF unit should contact the Employer Support and Service Protection team for further guidance, information and support.

Reservist’s protections

The main protections apply to reservists who are:

• employees (full-time, part-time, casual)
• apprentices/trainees
• contractors
• business partners
• students at an Australian educational institution

In relation to Defence service, the following actions by an employer or Australian educational institution may be a contravention of the Act:

• refusing to release a reservist from work or studies to render Defence service
• dismissing or otherwise disadvantaging a reservist
• coercing a reservist into using personal leave to render Defence service
• terminating the reservist’s employment within the protected period after resuming employment following an absence due to their rendering of Defence service
• varying the reservist’s employment by employing them in a capacity, or under terms and conditions, less favourable than they were employed on resuming work
• excluding a reservist from a course or unit of study
• failing to make reasonable adjustments to a student’s course of study
• refusing or expulsion from a partnership or terminating a contract

Frequently asked questions

Are employers obligated to release their employee to render Defence service?

Yes. An employer is obligated to release their employee to render Defence service. (Section 26 of the Defence Reserve Service (Protection) Act 2001).

Can an employer refuse to release an employee to render Defence service?

An employer must not hinder or prevent a reservist from rendering Defence service. (Subsection 17(1) (b) of the Defence Reserve Service (Protection) Act 2001).

If the absence of an employee to render Defence service will cause serious and significant impact to the business/organisation, the employer may contact and speak with the member’s ADF Unit in an attempt to resolve the issue.

Note: The details of the Reservist’s ADF unit can be found on the Form AE380, Tri-Service Notice of ADF Service (Please ask your employee for this if it hasn’t already been provided).

How much notice is a reservist obligated to give their employer about their upcoming Defence service?

There is no set period of notification that a reservist must provide their employer within the provisions of the Defence Reserve Service (Protection) Act 2001.

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 rendering Defence service.

While an employer may request a reservist to provide them with a set period of notice prior to rendering Defence service, the reservist is not obligated to satisfy such requests. In accordance with section 26 of the Defence Reserve Service (Protection) Act 2001, it may be unlawful for an employer to not release the reservist on this basis.

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 is still obligated to release the reservist to render Defence service.

What evidence must a reservist provide their employer to support their Defence service?

There is no legal requirement for a reservist to provide evidence of their Defence service to their employer. However, all reservists should provide their employer with a completed Form AE380, Tri-Service Notice of ADF Reserve Service which has been specifically designed for this purpose.

Note: While a reservist is not obligated to provide evidence of their Defence service, it may be unlawful for an employer to not release the reservist in the absence of any such evidence. (Section 26 of the Defence Reserve Service (Protection) Act 2001).

Are employers obligated to pay their employee while they are absent on Defence service?

No. An employer is not obligated to pay an employee while they are absent on Defence service. (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 a reservist if the reservist utilises a form of paid leave while rendering Defence service.

Example: An employee applies for two weeks paid annual leave and renders Defence service during this two-week period. The employer is obligated to pay the employee wages during this period of Defence service as the Defence service does not relieve the employer from their payment of annual leave obligations.

What type of leave should a reservist take to render Defence service?

There is no requirement for a reservist to take any type of paid or unpaid leave while absent on Defence service. (Section 25 of the Defence Reserve Service (Protection) Act 2001).

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 may be released from their employment on leave without pay.

Can employers direct their employee to take leave to render Defence service?

No. It may be unlawful for an employer to require an employee to take any type of personal leave while absent from the workplace when rendering Defence service. E.g. TOIL, annual leave, long service and other accrued personal leave. (Subsection 25(2) of the Defence Reserve Service (Protection) Act 2001).

Can a reservist take their leave to render Defence service?

Yes. A reservist can agree to take leave (such as annual leave) while absent on Defence service. (Subsection 25(3) of the Defence Reserve Service (Protection) Act 2001).

If applicable, requests from reservists to take leave for rendering Defence service should be considered in accordance with the employer’s leave policy and the provisions of the Fair Work Act 2009.

Should the employer’s leave policies and the Fair Work Act support the refusal of such a request to take leave, it is important to note that the employer is still obligated to release the employee to render Defence Service. (Section 26 of the Defence Reserve Service (Protection) Act 2001).

Are employers obligated to make payments to superannuation while their employee is rendering Defence service?

Employers are not required to meet the employer’s obligations for superannuation contributions for the reservist while they are absent on Defence service if the employee is not receiving pay. (Subsection 33(1) (d) of the Defence Reserve Service (Protection) Act 2001).

Does a reservist accumulate annual leave, personal or other prescribed leave entitlements while absent due to their rendering of Defence service?

If the reservist is rendering continuous full-time Defence service:

Where an employer releases a reservist to render continuous full-time service (CFTS), subsection 30(2) of the Defence Reserve Service (Protection) Act 2001 requires that the conditions of employment under which the reservist resumes employment after their period of absence, be no less beneficial than they would have been if they 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 reservist is entitled to accumulate leave while absent on LWOP as this may vary.

Where an employer releases a reservist on any type other type of personal leave (such as paid Defence leave, annual leave, long service leave), despite being on continuous full-time service the reservist is entitled to accumulate leave as they normally would during such times as the other type of leave is being utilised.

Example: A reservist is to render Defence service on continuous full-time service for five months and requests long service leave (LSL) for the first three months, and LWOP for the remaining two months. If approved, leave will continue to accrue during the first three months where the reservist is taking LSL. During the two months of LWOP, leave will only continue to accrue if sanctioned by the employer or applicable state/territory legislation.

If the reservist is rendering other Defence service (i.e. not continuous full-time Defence service)

While employers are not obligated to pay a reservist while they are absent while rendering 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.

During these periods of absence on Defence service, the reservist will continue to accumulate leave as if they were present in the workplace for that period.