Ahmed and Secretary, Department of Education, Employment & Workplace Relations

[2010] AATA 587

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 587

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4955

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Rehan Ahmed

Applicant

And Secretary, Department of Education, Employment & Workplace Relations

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date23 July 2010

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing of this matter, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is AFFIRMED.

..................[sgd].................

M D Allen, Senior Member  

CATCHWORDS

SOCIAL SECURITY – Claim for newstart allowance rejected. Applicant was not unemployed and did not satisfy the activity test.  Decision under review affirmed.  

LEGISLATION

Social Security Act 1991 sections 593, 595, 601

CASES

Secretary, Department of Employment and Workplace Relations v Joss [2006] FCA 884

REASONS FOR DECISION

23 July 2010 M D Allen, Senior Member            

1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         ............................[sgd]...........................................
  K. Lynch, Associate

Date of Hearing  23 July 2010
Date of Decision  23 July 2010
Date of Written Reasons  09 August 2010
Representative for the Applicant           Mr R Ahmed (self)
Representative for the Respondent      Centrelink Advocacy Service

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1.MR ALLEN:    By application made 19 October 2009, the Applicant sought review of the decision by the Social Security Appeals Tribunal affirming a prior determination not to pay Newstart allowance to the Applicant in the period 30 December 2008 to 29 June 2009. 

2.At the outset, I must say I found the factual background to this matter somewhat confusing, and it has not been helped by a decision by an Authorised Review Officer (“ARO”) to ask the Applicant to fill in activity tests, etcetera, for a period of 13 weeks when those 13 weeks had already expired.  This has led to confusion on the Applicant’s part and not a little confusion on my own. 

3.The facts, as I see them, are this:  that during the period under review, the Applicant was self‑employed.  He is an accountant by profession and subcontracted to a firm of accountants, MA Macdonald & Co.  He provided to his principal, for want of a better word, timesheets which set out his billable hours, and he was then paid at the rate of $26.27 per hour. 

4.There have been various figures which have been worked out by the Respondent in its statement of facts and contentions which show the amount of work which the Applicant, in fact, did during this period.  I would refer also to calculations set out at document ST13, page 194 and page 195 of the documents prepared for the Tribunal pursuant to section 35 of the Administration Appeals Tribunal Act 1975 (“AAT Act”).

5.ST13 is a letter addressed to the Applicant and dated 26 February 2010.  The calculations, with which I understood the Applicant not to take issue, show that in the period under review, he earned a total sum of $10,214.  That was corrected in the Respondent’s statement of facts and contentions to read a total of $10,897. 

6.On the schedule of billable hours, apparently prepared by the Applicant for his principal, it appears that his periods of work during the period under review resulted in an average of 17.04 hours of work each week.  In evidence today, the Applicant said that he was working full time, Monday to Friday, and studying. 

7.As an aside, the Applicant has said that if he had been on Newstart allowance, he would have been subjected to its constraints and, as a result, would have been required to look for work, and he would have looked for work.  I do not see how that can possibly assist him now.  The fact of the matter is that during the period in question, he was working, as he said, full time and also studying.  He was not at that time looking for work. 

8.Section 593 of the Social Security Act 1991 (“SSA”) states, inter alia that a person is qualified for Newstart allowance if he satisfies the Secretary that throughout the period, the person is unemployed.

9.It seems to me that during this particular period, the Applicant was not unemployed, but was under‑employed.  In Secretary, Department of Employment and Workplace Relations v Joss (2006) FCA 884, it was held that a person will be unemployed within the meaning of subsection 593(1) of the SSA if the person is without work or employment and that situation is both temporary and involuntary. If a person is carrying on a business or is engaged in work with a view to a profit, such a person cannot be considered to be unemployed for the purposes of subsection 593(1).

10.As I have stated earlier, there are a number of cases in which this Tribunal has found that a self‑employed person who is not earning sufficient money to support themselves is not, by reason of that fact alone, unemployed. 

11.In addition, a requirement for the grant of Newstart allowance as set out in subsection 593(1)(b) is that a person must satisfy the activity test. Section 601 of the SSA says that the activity test is satisfied if the person satisfied the Secretary that throughout the period, the person is actively seeking and willing to undertake paid work in Australia other than paid work that is unsuitable to be undertaken by the person.

12.I understand from his evidence today that during the period, the Applicant was not seeking to undertake further paid work. He was in paid work, and he was studying. There is some relief which is granted pursuant to section 595 of the SSA, which states:

(1)  The Secretary may treat a person as being unemployed throughout a period if:

(a)  during the period, the person undertakes:

(i)  paid work that, in the Secretary's opinion, is suitable for the person to undertake; or
(ii)  any other activity;

as a result of which he or she would, but for this subsection, not be taken to be unemployed; and

(b)  the Secretary is of the opinion that, taking into account:

(i)  the nature of the work or other activity; and
(ii)  the duration of the work or other activity; and
(iii)  any remuneration received for the work or other activity; and
(iv)  any other matters relating to the work or other activity, or to the person's circumstances, that the Secretary considers relevant;

the activity should be disregarded.

13.Guidelines have been issued by the Secretary in relation to the discretion implied in that section.  Although this Tribunal is not bound by those Guidelines, it is trite law that, unless persuaded otherwise, the Tribunal will, as a rule, follow Departmental Guidelines unless convinced that they are contrary to the Act. 

14.In this matter, the Guidelines provide that a person must work at a minimum period of 35 hours a week and must work at the Federal minimum wage.  It would appear that the Applicant’s weekly hours of work do not amount to 35 hours a week.  More importantly, the Federal minimum wage during the period under consideration was $14.31 per hour, however, the Applicant was earning $26.27 per hour, which is over that amount. 

15.It would seem, therefore, that the Applicant does not meet the Guidelines associated with section 593 SSA, and I see no reason in this case not to apply those Guidelines. That being so, and, as I said, being satisfied that the Applicant was under‑employed rather than unemployed, the decision under review is AFFIRMED.