The Moral Ethic of ADF Employment Rights
By Kay Danes* OAM
This article challenges the moral ethic around the inequities of the Australian Defence Force (ADF) workplace and what should be every member’s right, foremost as a civil right, to access fair and equal opportunity in their profession. It is a topical article that seeks to inspire discourse and analysis of the lack of official recognition of the employee to employer status for ADF members and to challenge the antiquated view that they serve on privilege alone.
For over 150 years, national union groups in Australia have stood for working families to ensure employees get the pay, conditions, safety and respect that they deserve (Australian Worker’s Union, 2016). Today all persons engaged in a workplace are provided with a safety net of minimum terms and conditions of employment through the National Employment Standards.
Australian workers have the right to health and safety as a human right which imposes a moral obligation on the Australian government to ensure worker’s rights are regulated and in doing so, protected by national and international laws (Rudd, 2011). These protections allow employees to access a workplace free from discrimination, harassment and bullying and one that provides each individual equal opportunity in their profession (Fair Work Ombudsman, 2016).
The Australian Defence Force (ADF) however vastly differs in practice to the civilian employment sector since ADF members are not technically employees and as argued the ADF is not an equal opportunity employer, even though its policies are increasingly developed around legislation (Nettheim, 1973). While it is true that the ADF has an inclusive organisational structure that promotes a positive image of service and a devotion to its workforce, it fails miserably to afford its members equal opportunity in their profession.
On the one hand, the ADF willingly avails its departments to comply with the Laws of the Nation on a National and State level. It obliges its membership to actively participate in the complex framework of community, sharing in common commitments and practices for a peaceful society based on mutual respect. The ADF demands its leadership adhere to and enforce good governance in accordance with legislative policy that informs the order of Australian society: the Racial Discrimination Act 1975, the Defence Force Discipline Act 1982, Sex Discrimination Act 1984, Human Rights and Equal Opportunity Commission Act 1986, the Privacy Act 1988, the Disability Discrimination Act 1992, the Public Service Act 1999 and the Age Discrimination Act 2004.
ADF members are free to access compensation and benefits on illness or death, superannuation, travel, long service leave (and other leave) and meal allowances, vehicle and housing allowances, medical treatment, entitlements for family and dependants even breakdown in marriage entitlements, relocation allowances and access to career transition schemes (Depatment of Defence, 2016). On balance therefore, the ADF appear to be an equal opportunity employer.
On the other hand, ADF members are excluded from accessing the full benefits of civil liberties afforded to their civilian counterparts ─ the prescribed personal freedoms that the government cannot abridge, either by law or by judicial interpretation without due process.
All people working in Australia are entitled to general workplace protections as described under the Fair Work Act (2009). Inclusively, the right to be free from unlawful discrimination and to be provided protection from adverse action and misrepresentation. ADF members have no status of employee to employer relationship therefore they are limited in their ability to present any direct legal challenge outside the Chain of Command.[i]
This statement has been tested in an adverse action case presented to the Federal Court of Australia which concluded “the relationship between the Crown and a member of the Defence force has not been and is not founded on contract and is not that of employer or employee” (C v Commonwealth of Australia, 2015).
It serves to reinforce the concerns within the Defence community that relate to the treatment of ADF members, who are often denied access to fair and equitable treatment (McDonald, 2014). When an ADF member presents an enquiry in accordance with the Freedom of Information Act, to seek information withheld and relevant to their claim of ill-treatment, they are immediately confronted by an intimidating and fully resourced Defence Legal Office citing ‘National Security’ or ‘Security of the Commonwealth’ or ‘Defence of the Commonwealth’ as a typical response against any potential adverse action claim.[ii] Documents are exempt under this Act if they could reasonably be expected to cause damage to the Commonwealth and its members or to the security of Australia and its population (Stinson, 2015).
For the young, inexperienced ADF member, this can be a daunting encounter that more often extinguishes any further contemplation of fighting for the right to procedural fairness. The more experienced, senior ADF members who have years of witnessing the reality of the system, are no less intimidated but with knowledge comes a sense of empowerment and more often the senior ADF member is less inclined to bend their will to intimidation.
This hardly reflects an organisation of inclusion or equal opportunity that the former Chief of the Defence Force, General David Hurley endeavoured to promote: ‘I want the Australian Defence Force to be recognised as an employer of choice; a fair, just and inclusive organisation that sets the benchmark for other employers. Everyone at every level has an active role to play in living the Defence values and meeting this intent’ (Hurley, 2013).
The employment relationship is an important one as it establishes reciprocal rights and obligations between the employee and the employer. In the absence of specific recognition of an employee to employer relationship occupational protections in their entirety can be eroded for ADF members. Understandably, governments must have full control over their Defence Forces in order to maintain a stable democracy but where is the moral imperative to give a reasonable measure of consideration to individuals who are active contributors to society? Where is the good governance that establishes the provisions that provide equal opportunity in the workplace and to work in an environment that respects procedural fairness and the right to appeal unlawful decision-making?
Clear agreement contract
The employee to employer relationship does exist in the ADF and this is evidenced by the Oath of Enlistment which forms a contractual employment agreement. It apprises the obligations of one party to the other and clearly and unequivocally expresses an intention to contract to specific terms of agreement (Yanosik, 2016).
Moreover, an ADF member commits to a period of service (number of years) to the ADF and in doing so provides their signature in agreeance which is witnessed by a third party of the ADF (Commonwealth of Australia, 2002). They are then entitled to a generous remuneration package with benefits, including superannuation, medical, accommodation, travel, leave and even meals.
By any expert definition of the status of employee is representative of someone who is engaged by another to do a specific task, has a job description, is renumerated and pays tax, is subjected to performance appraisals and receives feedback (Heathfield, 2014). Therefore, the ADF can no longer remain cocooned in its antiquated space, denying its employees full legal entitlement that comes with the acknowledgement of an employee to employer relationship. Especially when the wider society informs its recruitment base and have an appreciation of civil liberties and human rights, perhaps more than previous generations of Australians.
If ADF members are to access the same employment protections as all other Australian employees, then the servant of the Crown doctrine needs to reflect a more contemporary legislative policy. ADF members should have the right to report their ill-treatment to an independent authority, free from ADF influence so that the ADF workplace can become a fairer and safer working environment.
Clearly matters dealt with ‘internally’ may allow ADF members the right to complain but this process is rife with conflicts of interest and an overall lack of independence and impartiality.
“The large number of botched inquiries, investigations and complaint resolutions conducted by the ADF and the Department of Defence, and the growing morass of its internal redress of grievance procedures, mean that strong action needs to be taken to restore public and Service personnel confidence respectively” (Australian Defence Association, 2012).
Fairness demands independence
How can a process be fair when complaints must be submitted through a Chain of Command, embedded in a culture where one is immediately seen as inferior to the other as a consequence of the rank structure and should not question authority. Being that the ADF is a uniformed organisation, strongly influenced by tradition, rules and hierarchy, it is not easy for subordinates to raise complaints about their superiors to other superiors and not be fearful of repercussions. Without impartiality the outcomes will surely favour one party over the other.
Complaints raised through the system allows the ADF to be seen to be providing equal opportunity to its members on the one hand but when those claims are exhausted and the outcome is unfavourable to the ADF then the servant of the Crown defence is adopted to end disquiet. ‘Security of the Commonwealth’ is the all too familiar mantra paraded out by the hierarchy of the Defence Legal Office to quash any further legal challenge.
The system is broken.
In 2015, the Department of Defence showed an unreasonable failure to institute appropriate administrative procedures and were forced to pay $745,000 in defective administration payments following compensation claims (Thomson, 2015). The aim of claiming under defective administration is supposed to restore a claimant to the position they would have been in had unreasonable or defective administration not occurred. While the scheme can compensate for a minimal financial loss, it falls short of truly restoring a member to their former occupational status, largely due to the time it takes to action such administrative processes in the ADF.
The figures enable the ADF to project an image of procedural fairness and duty of care in order to meet accountability requirements during the usual annual government audit processes. What the figures actually establish is that a small percentage of ADF members have found a way to get a form of justice…but the figures do not reflect the personal impact on soldiers or the hardships their families may have faced when first the member initiated their right to claim.
Many in the ADF feel a sense of hopelessness at having no tangible persuasive power to remedy their claims.
Those who are permitted the right to complain may be afforded legal assistance in preparing their complaint but even that surely poses a conflict of interest of sorts, whereby an ADF member engages an ADF lawyer to help prepare a legal complaint against another ADF member or the ADF itself, all of which is paid for by the ADF, investigated by the ADF with findings determined by the ADF. How can this sort of process be considered in any way impartial?
The purpose of allowing ADF members the same access to employment rights and protections guaranteed to their civilian counterparts is not to abolish the servant to the crown relationship, but rather to make the workplace more equitable. Equality for all in the workplace strengthens organisational frameworks to allow members to freely challenge discrimination, bullying and inequitable practices.
ADF members should not be excluded from accessing a decent work agenda simply because they wear a uniform and pledge an oath to serve the crown. ADF members put their lives at risk for the entire nation and its people, in pursuit of those very liberties they have vowed to protect and which are enshrined in principle and in law as human rights.
* Author: Kay Danes, OAM, Southern Cross University
Kay Danes is a PhD candidate at Southern Cross University, Coolangatta. Her PhD thesis is titled ‘Long-term Local and International Strategies for the Protection of Humanitarian Workers in Global Conflict Zones’. She is an international humanitarian author and advocate. In 2014, Kay was awarded the Medal of the Order of Australia for her social justice and human rights work worldwide. She is a long-time associate of Civil Liberties Australia, working on joint projects.
Australian Defence Association, 2012. Senate inquiry into the effectiveness of Australia’s military justice system, Canberra, ACT: Erindale Centre.
Australian Worker’s Union, 2016. About our Union, Sydney, NSW Australia: The Australian Worker’s Union.
C v Commonwealth of Australia, 2015. FCAFC 113, Canberra: Federal Court of Australia.
Commonwealth of Australia, 2002. Defence Personnel Regulations – Schedule 2 , Canberra, ACT: Department of Australian Attorenys General.
Department of Defence, 2016. Pay and Conditions, Canberra, ACT: Australian Government.
Donald, P., 2016. ADF faces 105 compensation claims for physical and sexual abuse, praised for handling, Brisbane, Qld, Australia: ABC News .
Fair Work Ombudsman, 2016. National Employment Standards, Canberra, ACT: Australian Government.
Heathfield, S., 2014. What Is an Employee?, New York City: About.com.
Hurley, D., 2013. Gender in Defence and Security Leadership Conference, Canberra: Department of Defence.
International Labour Organisation, 1999. Decent Work Report, Geneva, Switzerland: Report of the Director General, International Labour Office.
McDonald, A., 2014. More than 180 Australian Defence Force members sacked for misconduct in past year, figures show, Sydney, NSW Australia: News ABC.
Nettheim, G., 1973. Do members of the Armed Forces have any rights in their Employment?. Federal Law Review, Volume 5, p. 48.
Rudd, K., 2011. Australia ratifies Convention to help protect workers from asbestos-related health hazards, Canberra, ACT: Australian Government.
Stinson, T., 2015. Notice of Decision on Freedom of Information Request, Canberra, ACT: Dpartment of Defence.
Thomson, P., 2015. Public servant’s $66,649 stuff up: Compensation for “defective administration’,Canberra, ACT: The Canberra Times Newspaper.
Yanosik, J., 2016. Contract Definition:, Louth, England: Lloyd Duhaime.
[i] In a military context, the chain of command is the line of authority and responsibility along which orders are passed within a military unit and between different units. The Australian Army rank structure is discussed in detail at this link. Retrieved 1 March 2016 from http://www.army.gov.au/our-people/ranks
[ii] Freedom of Information Act. Part V Exemptions (version 1.1) Security of the Commonwealth and Defence of the Commonwealth explained in detail. Retrieved 02 March 2016 from https://www.oaic.gov.au/freedom-of-information/foi-archive/foi-guidelines-archive/part-5-exemptions-version-1-1