Reserve service protection

The DRS(P) Act provides protections to Reserve members who are:

• employees (full-time, part-time, casual)
• apprentices and trainees
• contractors
• business partners
• students

Yes, defence service on VUS is protected by the DRS(P) Act.

Note for Commanders/managers Before authorising VUS, consideration of the potential benefits from the VUS should be considered against the impact the Reserve member’s absence might have on their employer. See MILPERSMAN Part 7 Ch. 3 – Voluntary Unpaid Service for further information.

No. The DRS(P) Act provides protections for individuals who are, or have been, a member of the Reserves. It does not include individuals undertaking a recruitment or selection process.

Defence service means service (including training) as a member of the Reserves (see section 7 of the DRS(P) Act).

It includes a broad range of service including, but not limited to: training, initial employment (IET), specialist, trade, professional development, professional military education (PME), promotion courses, exercises, operational service, service as a result of call out, representational duties, continuous full-time service CFTS (also known as Service Option C or SERVOP C), voluntary unpaid service (VUS), Defence-approved medical appointments. It can also include limited periods if a Reserve member is injured or becomes ill while rendering defence service.

The Chief of the Defence Force (CDF) decides when a member renders defence service (see the Defence Act 1903, section 26). In reality, authorised Commanders (e.g. Unit CO’s - or appropriate person) or Managers will make this decision on CDF’s behalf.

Prior to making such a decision, a Reserve member will volunteer or make themselves available, after consulting with their employer or educational institution, but then the Service determines if defence service is to be rendered.

It is for this reason that the AE 380 Tri-Service Training Notice form provides details of an appropriate unit Point of Contact (POC) and Reserve Service Authorising Officer who can discuss the defence service with the employer should the employer consider that the proposed absence will cause significant and serious impact to the business/organisation.

Any concern is best and usually resolved at the lowest level possible, i.e. between the member and the employer; the member and the Reserve Service Authorising Officer and employer. If subsequently required, the concern can be referred to the Employer Support and Service Protection (ESSP) team through 1800 DEFENCE (1800 333 362). ESSP will then assist the decision-maker reach a solution. In almost every case, appropriate outcomes are achieved.

There is no set period of notification that a Reserve member must provide their employer with in the DRS(P) Act. This being said, all Reserve members are encouraged to discuss their upcoming Defence commitments with their employers as early as possible, ideally 6–12 months in advance where possible.

Where a reasonable notification period is not provided, it is important to note that it is unlawful for an employer to not release the Reserve member for defence service on that basis (see section 26 of the DRS(P) Act).

There is no legal requirement for a Reserve member to provide any evidence of their defence service to their employer. However, Defence encourages all Reserve members to provide their employer with a completed AE380 Tri-Service Notice of ADF Reserve Service form, which has been specifically designed for this purpose.

Yes. An employer is obliged to release their employee to render defence service (see section 26 of the DRS(P) Act).

An employer must not hinder or prevent a Reserve member from rendering defence service (see subsection 17(1) (b) of the DRS(P) Act).

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 Reserve member’s ADF Unit in an attempt to resolve the concern.

Note: The details of the Reserve member’s ADF unit can be found on the AE380 Tri-Service Notice of ADF Service form. Please ask the Reserve member for this if it hasn’t already been provided.

No. An employer does not have to pay an employee while they are absent on defence service (see subsection 33(1) (a) of the DRS(P) Act), subject to the conditions set out in subsection 33(2) of the DRS(P) Act.

The conditions set out in subsection 33(2), require an employer to pay a Reserve member if the member is using a form of paid leave while rendering defence service.

Example: An employee requests and is approved to use one-week paid annual leave when they render two-weeks defence service. The employer is obliged to pay the employee’s wages during the one-week period where annual leave was used, but is not required to pay the member’s wages during the second week.

Employers are not required to meet the employer’s obligations for superannuation contributions for the Reserve member while they are absent on defence service if the Reserve member is not receiving pay (see subsection 33(1) (d) of the DRS(P) Act).

No. It is not compulsory for employers to have such a policy. However it is good practice to have a policy which details appropriate obligations and entitlements.

It is important to note that while an employer doesn’t have to have a Defence Reserve leave policy, an employer is still obliged to release a Reserve member to render defence service in accordance with section 26 of the DRS(P) Act, and without requiring the Reserve member to take any type of paid or unpaid leave.

Related FAQ: What type of leave should a Reserve member use to render defence service.

Having said this, it is a requirement to have a Defence Reserve Leave policy for Gold (Advocate) and Silver (Demonstrate) Tiers of the voluntary Supportive Employer Program. For further information about the Supportive Employer Program, click here.

There is no requirement for a Reserve member to use any type of paid or unpaid leave while absent on defence service (see section 25 of the DRS(P) Act).

However, most employment contracts contain provisions that absences from the workplace require some sort of leave to be used. 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 (LWOP) noting that in most instances, normal leave requirements will still need to accumulate while a Reserve member is rendering defence service on LWOP.

Related FAQ: Does a reserve member accumulate annual leave, personal or other prescribed leave entitlements while absent from the workplace and rendering of defence service?.

No. It may be unlawful for an employer to require a Reserve member to take any type of leave while absent from the workplace when rendering defence service. E.g. TOIL, annual leave, long service and other accrued leave entitlements (see subsection 25(2) of the DRS(P) Act).

Yes. A Reserve member can request to use annual leave while absent on defence service (see subsection 25(3) of the DRS(P) Act).

If applicable, requests from Reserve members to use accrued leave entitlements to render defence service should be considered in accordance with the employer’s normal 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 use accrued leave, it is important to note that the employer is still obliged to release the employee to render defence Service (see section 26 of the DRS(P) Act).

Yes. Employers may put conditions on paid Defence reserve leave however the employer is still obliged to release the employee to render defence Service (see section 26 of the DRS(P) Act).

In general, when a Reserve member is on sick/personal/carer’s leave from their civilian employer, they should not seek to render defence service.

While this is not a Reserve Service Protection issue, the following guidance is provided as Defence has received enquiries from both members and civilian employers about whether it is appropriate for a reserve member to render service while on these types of leave.

The DRS(P) Act does not address this issue, and the issue is not always addressed within a member’s civilian conditions of employment.

Each circumstance needs to be considered on an individual basis.

Information for members:

• Your employer may have policies about approval of sick/personal/carer’s leave which affect your ability to render defence service while on these types of leave
• ADF members (including Reserve members) are expected to participate actively in the management of their health issues
• There are some circumstances where a civilian employer may support a Reserve member in rendering defence service while on these types of leave. These circumstances include where a Reserve member:
  • Has medical evidence (for their civilian employer) stating that they are not fit to perform work in that (civilian) capacity, but states they are fit to render defence service
  • Is on a Return to Work Plan (e.g. Rehabilitation/worker’s compensation related) for their civilian employer, that allows for agreed/approved work within their Reserve capacity (In the event that a Return to Work Plan/medical evidence allows for the employee to render reserve service, the employee should share that part of the plan/medical evidence with their Commander/manager, so that appropriate risk assessment and mitigation is put in place, and any conditions attaching to the proposed Return to Work Plan/medical certificate can be met)
  • Is accessing personal/carer’s leave for caring purposes - if the defence service is being rendered at a time outside their normal civilian working hours, and someone else is available to provide the care.  

If you are in one of the above circumstances, and you are planning to render defence service while accessing sick/personal/carer’s leave from your civilian employer, you should advise both your civilian employer and your Reserve unit of your specific circumstances before rendering defence service.

Note that it is still the decision of the civilian employer to approve your sick/personal/carer’s leave; and your ADF commander to determine if they require you to render reserve service.

Both you and your civilian employer and the ADF have responsibilities under the Work Health and Safety Act 2011, to take reasonable care for your health and safety, and that of other workers. So it is important that both your civilian employer and your ADF unit are advised of your particular circumstances if you plan to render reserve service while on these types of leave. 

If the Reserve member is rendering continuous full-time defence service:

Where an employer releases a Reserve to render continuous full-time service (CFTS), subsection 30(2) of DRS(P) Act requires that the conditions of employment under which the Reserve member 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 Reserve member is entitled to accumulate leave while absent on LWOP as this may vary.

Note. Where an employer releases a Reserve member on any other type of personal leave, such as paid Defence Reserve leave, annual leave, long service leave, then the Reserve member is entitled to accumulate leave as they normally would.

Example: A Reserve member 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 Reserve member 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 Reserve member is rendering other defence service (i.e. not continuous full-time defence service)

While employers are not obliged to pay a Reserve member while they are absent while rendering defence service, subsection 31(2)(a) of DRS(P) Act requires that these periods are to be taken as paid service.

During these periods of absence on defence service, a Reserve member will continue to accumulate leave as if they were present in the workplace.

The ‘protected period’ immediately follows a period of defence service. The ‘protected period’ is the shorter of the following periods:

1. The period that begins immediately after the day on which the Reserve member ceased rendering defence service and that is equal to the length of that service or;
2. The period of 12 months beginning immediately after the day on which the Reserve member ceased to render defence service.

Example. A Reserve member rendered a six-week period of defence service with the last day of defence service being on 11 August 2024. The ‘protected period’ is the six-week period immediately following, being 12 August to 22 September 2024.

The main protection that applies during the protected period relates to employment. 

During the period that begins immediately after the Reserve member resumes work, or is reinstated in employment, and that is equal to the length of the Reserve member’s absence on defence service, the employer must not:

1. terminate the Reserve member’s employment, or
2.  vary the Reserve member’s employment by employing them in a capacity, or under terms and conditions, less favourable to them than the capacity in which, or the terms and conditions under which, they were employed on resuming work or being reinstated in employment.

There are also some financial liability protections provided for under Part 8 of the DRS(P) Act.

Part 7 of the DRS(P) Act sets out protections for Reserve members who are enrolled in a course before starting to render a period of defence service. Reasonable adjustments could involve any of the following:

38 (3)

1. not failing the member; (e.g. fail the subject or have ‘fail’ recorded against ‘record of studies’);
2. recognising assessment or practical work undertaken by the member before starting to render defence service;
3. allowing the member to defer undertaking or completing assessment or practical work;
4. refunding or crediting fees paid by or for the member. (e.g. not be financially disadvantaged with lost fees or HECS fees)

38 (4) An adjustment is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the body administering the education institution. e.g. there may be some courses / units of study where the availability of specialist educators or training equipment /aids is very limited and it would impose an unjustifiable hardship for the educational institution to rearrange specifically for the member. 

The decision is yours as to whether or not, or how much defence service you render during your probation period. While section 17 of the DRS(P) Act requires employers not to hinder or prevent a Reserve member from rendering defence service, as a Reserve member, you are a representative of the ADF and must behave in a fair and reasonable manner towards your employer at all times. Always consider the impact your absence may have on your employer’s business or organisation’s operations, and your own position/reputation as a new employee wanting to successfully complete your probation period and establish your position/career. It may be more appropriate to consider successfully completing the probation period before being absent for the rendering of defence service. If defence service can be rendered at times during the probation period without being absent from work, this approach may be more appropriate.

Despite the above, pursuant to section 16 of the DRS(P) Act an employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: change the terms and conditions of employment of an employee to his or her prejudice; discriminate against an employee in his or her terms and conditions of employment; dismiss an employee. A prohibited reason is when an employee may volunteer to render defence service; or is rendering defence service; or is, or may have become, liable to render defence service; or has previously rendered defence service. In order for an employer to contravene this provision, there must be sufficient / strong evidence of a prohibited reason.

In short, yes.

This is a reasonable request made by a number of employers. Reserve members have responsibilities and obligations to their employers including informing them of their deserve service. Both parties (the ADF and the employer) may wish to consider the pattern of required defence service within the context of the duty of care both hold to manage fatigue and support reasonable work practices.

It should be noted that defence service (of any kind) by a Reserve member is not considered to be ‘employment’ or ‘secondary employment’, rather it is ‘service to the Crown.’ As set out in sections 18, 19 and 20 of the Defence Act 1903, members in the Navy, Army and Air Force are appointees to those positions, which is a different legal relationship than employment. Despite this technical difference, Reserve members should comply with their employers’ request if made.