Opinion Number. 917

Subject

DEFENCE FORCES WHETHER ABSENCE FROM EMPLOYMENT OF OFFICER ENGAGED IN TRAINING SENIOR CADETS AMOUNTS TO ABSENCE FROM EMPLOYMENT FOR PURPOSES OF TRAINING

Key Legislation

DEFENCE ACT 1903, ss. 62 (4), 134 {IA): DEFENCE ACT 1918, s. 7: AUSTRALIAN MILITARY REGULATIONS 1916, regs 1217, 1220

Date
Client
The Secretary, Department of Defence

The Secretary to the Department of Defence has requested advice as to whether an officer who is absent from his employment for the purpose of training senior cadets but who is not himself liable, under Part XII of the Act, to undergo training can be said to be absent from his employment for the purposes of training within the meaning of section 134 (1A) of the Defence Act 1903-1918.

Section 134 (1 A) of the Act provides as follows:

Any employee who is serving or liable to serve in the Senior Cadets shall be paid by his employer for any time he is absent from employment for the purposes of training, except the training required of the cadet for failure to become efficient or while undergoing confinement for an offence, but nothing in this section shall render an employer liable to pay an employee for any time when he is absent from employment for the purpose of training in the Citizen Forces.

As sub-section (1A) originally stood, it provided for the payment of senior cadets only, that is, for the payment of persons liable under Part XII to be trained in the Senior Cadets. The Defence Act 1918 amended the sub-section to provide for payment to 'Any employee who is serving or liable to serve in the Senior Cadets'. A senior cadet in my opinion comprises only those who are liable to be trained in the Senior Cadets; but it is, I think, clear from the Regulations that persons other than those liable under Part XII of the Act may serve in the Senior Cadets as officers. Section 62 (4) of the Act provides that officers and non-commissioned officers of Junior and Senior Cadets shall be appointed as prescribed, and without regard to the conditions prescribed for the corresponding ranks of the Citizen Forces. Regulation 1217 of the Australian Military Regulations provides for the promotion of senior cadets to commissioned rank in the Senior Cadets. Then regulation 1220 provides for the appointment as officers in the Senior Cadets where there are not sufficient number of qualified candidates for appointment under regulation 1217, of persons who are not liable to be trained in the Senior Cadets.

Sub-section (1A) as originally passed did not in my opinion provide for all persons serving in the Senior Cadets, but only for those persons who were obliged to render the personal service in the Senior Cadets required by the Act. It is unnecessary for the purposes of the present question to decide whether the words 'senior cadet' in the original sub-section included officers who were liable to serve in the Senior Cadets; but there can, I think, be no doubt the words inserted by the 1918 Act in lieu of the words 'senior cadet' include officers. That is, officers are entitled to payment when absent from their employment 'for the purposes of training'.

Absence for the purposes of training within the meaning of section 134 (1 A) of the Act means, in my opinion, not only absence for the purpose of being trained but also absence for any other purpose connected with the training, including the purpose of giving senior cadets the training required by the Act.

I am, therefore, of opinion that an officer serving in the Senior Cadets who is absent from his employment for the purpose of training senior cadets, but is not himself liable, under Part XII of the Act, to undergo training in the Senior Cadets, can be said to be absent from his employment for the purposes of training within the meaning of section 134 (1 A) of the Defence Act 1903-1918.

[Vol. 16, p. 213]