ANDREI VATARESCU and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 477

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 477

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4535

GENERAL ADMINISTRATIVE` DIVISION		)               2009/0006
Re		ANDREI VATARESCU

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date29 June 2009

PlaceSydney (heard in Canberra)

Decision

Proceedings 2008/4353

I affirm the decision of the Social Security Appeals Tribunal (SSAT) dated 25 September 2008.

Proceedings 2009/5006

I set aside of the decision of the SSAT dated 11 December 2008 insofar as it found that Mr Vatarescu committed a participation failure on 11 June 2008 and substitute the decision that he did not commit a participation failure on that date. I otherwise affirm the SSAT decision that Mr Vatarescu committed a participation failure on 24 June 2008.

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

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – Participation failures – Whether participation failures - Whether three within 12 months –– Whether reasonable excuse – Held no reasonable excuse – Eight week non payment period properly imposed – Notice of one participation failure unreasonable -  Decision set aside in part – Decision affirmed in part

Social Security Act 1991, ss 601, 605, 624, 629

Social Security (Administration) Act 1999, s 63

Social Security (Reasonable Excuse) (DEWR) Determination 2006

Guide to the Social Security Law, Part 3.2.7.10

Re Vatarescu and Secretary, Department of Education, Employment and Workplace Relations [2007] AATA 1717

REASONS FOR DECISION

29 June 2009 Mrs Josephine Kelly, Senior Member      

SUMMARY

1.      Mr Andrei Vatarescu has a PhD in Optical Physics.  He has two applications before the Tribunal in which he seeks the review of two decisions made by the Social Security Appeals Tribunal (the SSAT) relating to his receipt of newstart allowance. 

Proceedings 2008/4535

2.      The first decision Mr Vatarescu challenges was made by the SSAT on 25 September 2008 (proceedings 2008/4535). The SSAT affirmed the decision made by a Centrelink Authorised Review Officer (ARO) on 27 August 2008 affirming a decision to impose an eight week non-payment period for his newstart allowance.  The reason was that Mr Vararescu had three "participation failures" on 11 December 2006, 24 January 2007 and 29 November 2007 without reasonable excuse.  The non-payment period imposed on Mr Vatarescu began on 13 September 2008 and ended on 7 November 2008.

Proceedings 2009/0006

3.      The second decision Mr Vatarescu seeks to have reviewed was made by the SSAT on 11 December 2008 (proceedings 2009/0006).  The SSAT affirmed a decision made by an ARO on 27 August 2008 that Mr Vatarescu had committed further participation failures without reasonable excuse on 11 and 24 June 2008. 

ISSUES

4.      The issues in proceedings 2008/4535 are:

a) Whether Mr Vatarescu committed participation failures on 11 December 2006, 24 January 2007 and/or 29 November 2007?

b) If so, whether he has a reasonable excuse for any of those participation failures?

c)   If not, whether Mr Vatarescu was subject to an eight week non payment period because he committed two or more participation failures during the 12 months before the last participation failure?

5.      The issue in proceedings 2009/0006 is whether Mr Vatarescu committed participation failures on 11 June 2008 and/or 24 June 2008 without reasonable excuse.

MR VATARESCU’S ARGUMENTS

6.      Mr Vatarescu represented himself at the hearing. He also provided written arguments and submissions, and documentary material.  Of particular importance to the argument he presented were an Australian Government booklet entitled A job seeker's guide to Job Network (the booklet) and an extract from the Guide to the Social Security Law - 3.2.7.10 NSW/YA Activity Testing – Overview (the overview) which was included in the documents provided to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 in proceedings 2008/4535.  

7.      In summary, Mr Vatarescu argued that the Job Network Members (JNMs) could not, and did not, meet his employment needs, given his skills, qualifications and experience.   He argued that the Department administering the Job Network has not complied with the relevant legislation.   

8.      Mr Vatarescu said that the booklet was “Job Network Legislation”, and that JNMs had not complied with the requirements set out in the booklet. Specifically, JNMs must provide services “tailored to meet job seekers' needs and available job opportunities”, explore “new work areas where experience can be used” and should provide for the “referral to other specialised employment services”. He questioned his JNMs' competence and performance.

9. He contended that an Activity Agreement should not require a jobseeker to look for or do “unsuitable work”, that is work not suited to the person's skills, experience, or qualifications. He referred to s 601(2A) of the Act. He said:

“The very low level of activity delivered by the JNM can only hold back and bring down a person possessing post-graduate qualifications in a modern field of science and technology”.

10.     Mr Vatarescu said that he has been undertaking a technological project involving “high speed fibre-optic transmission taking advantage of [his] professional background in optical physics and microwave circuits” following the Commonwealth Government’s new broadband policy. He provided a number of letters sent to various employers and government agencies, with a view to employment and assistance with his project.  Mr Vatarescu did not think he should be required to apply for unskilled jobs that were outside his area of expertise.

11.     He argued that the whole job network regime was futile, and amounted to fraud, because the Employment Service Providers were spending government money only to maintain their own contracts.  They did not, and could not, provide to him the service that they were required by the legislation to provide.

LAW

12. Section 605(1) of the Social Security Act 1991 (the Act) permits the Secretary to require a person to enter into a Newstart Activity Agreement (Activity Agreement) if the person is receiving newstart allowance. The Secretary, Department of Education, Employment and Workplace Relations (the Secretary) may outsource the function of administering Activity Agreements to Employment Service Providers (ESPs) and JNMs.

13. Section 624 of the Act defines a participation failure:

(1)  A person commits a newstart participation failure if the person:

(a)  fails to comply with a requirement:

(i) that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and

(ii)  that was reasonable; and

(iii)  the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or

(b)  fails to satisfy the activity test; or

(c)  fails to comply with a requirement to enter into a Newstart Activity Agreement; or

(d)  fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; or

(e)  fails to attend a job interview; or

…

Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.

14.     The Social Security (Reasonable Excuse) (DEWR) Determination 2006 (the Reasonable Excuse Determination) sets out matters that must be taken into account when determining if a person has a reasonable excuse under the Act.

15. Section 629 of the Act provides that newstart allowance is not payable if a person commits repeated or more serious failure:

Allowance not payable because of repeated or more serious failure

(1)  A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:

(a)  commits a newstart participation failure (the repeated failure ), having committed newstart participation failures (the earlier failures ) on 2 or more other occasions during the period of 12 months preceding that failure; or

…

16. Subsection 63(2) of the Social Security (Administration) Act 1999 (the Administration Act) sets out notification requirements, relevantly:

Requirement to attend Department etc.

(1)  This section applies to a person if:

(a)  the person is receiving, or has made a claim for, a social security payment;

…

(2)  If the Secretary is of the opinion that a person to whom this section applies should:

…

(c)  attend a particular place for a particular purpose; or

…

the Secretary may notify the person that he or she is required, within a specified time, to:

…

(g)  attend that place for that purpose; or

(h)  give that information;

as the case may be.

CONSIDERATION

17.     I have taken into account the oral argument during the hearing and all of the documentary material before me including Statements of Facts and Contentions in both proceedings filed on behalf of the Secretary, and written submissions and argument provided by Mr Vatarescu.  The crux of Mr Vatarescu's complaint is that he wants assistance with his project.  He has sought Commonwealth government assistance unsuccessfully.   

18.     I consider each of the proceedings separately.

Proceedings 2008/4535

19.     I consider each of the alleged participation failures in proceedings 2008/4535 in turn.

11 December 2006

20.     On 11 December 2006, Mr Vatarescu did not attend an appointment with his JNM, Caloola Skills Training and Job Placement (Caloola), at Woden, ACT. This Tribunal has already decided in a previous application that this was a participation failure for which Mr Vatarescu did not have a reasonable excuse (see Re Vatarescu and Secretary, Department of Education, Employment and Workplace Relations [2007] AATA 1717 (29 August 2007)). There was no appeal from that decision. I agree with the submission made on behalf of the Secretary that the previous decision of this Tribunal is the final ruling on that question. I do not reconsider that matter. This participation failure is the first the Secretary relies upon.

24 January 2007

21.     I find that on 3 January 2007, Caloola wrote to Mr Vatarescu to schedule an appointment for 24 January 2007.  The message included a warning that if Dr Vatarescu failed to attend the appointment the failure would be reported to Centrelink, which may affect payment of his benefits. Mr Vatarescu did not attend the appointment.  He acknowledged during the SSAT hearing that he did not. I am satisfied that Mr Vatarescu was given reasonable notice of the appointment by Caloola on 3 January 2007.

22.     Did Mr Vatarescu have a reasonable excuse not to attend? Mr Vatarescu sent an email to Caloola in response to an email advising him that he had "missed another appointment" on 24 January.  In part, Mr Vatarescu replied:

Once again, playing bureaucratic games of endless and useless job applications so you can get your case management fee is the most futile activity one can come up with. If you want your fee, then you should apply on my behalf… First you have to understand what the problem is before you will be in a position to put forward a constructive solution. You are incapable of doing so, and consequently there is no justification for me to spend money on bus tickets to make you happy. You are completely clueless when it comes to professions in science and technology, and your pathetic attempt to find vacancies proved that beyond doubt. I have already asked Centrelink to transfer my case to Civic… Your threats leave me cold like the rest of the Caloola Centre. Good bye and good riddance. Dr Andre Vatarescu.

23.     Mr Vatarescu’s excuse for not attending is apparent from his response.   It is his long-standing dissatisfaction with the job network system.  This Tribunal has no role in relation to such a complaint.  There is a system created by legislation.  The role of the Tribunal is specified in the legislation and is limited in this case to finding whether there was a participation failure and whether there was a reasonable excuse under the Act.  Mr Vatarescu's excuse is not reasonable. I find that Mr Vatarescu committed a newstart participation failure on 24 January 2007.

29 November 2007

24.     On 22 November 2007, Mr Vatarescu entered in an Activity Agreement with IPA Personnel Pty Ltd (IPA). The Activity Agreement provided that Mr Vatarescu was required to “Attend regular appointments with IPA from 22/11/2007 to 22/05/2008” and “Prepare and send applications for suitable positions with the help of IPA Personal from 22/11/2007 to 22/05/2008”.

25.     An appointment was scheduled on 29 November 2007. I am satisfied Mr Vatarescu had reasonable notice of the appointment. At the hearing, he did not dispute that he did. IPA reported that Mr Vatarescu was not co-operative:

“When he attends his appointments he stands over consultant [sic], refusing to sit and points his finger and raises his voice in an intimidating manner. When consultant attempts to talk he immidately [sic] talks over her in a raised voice. He yells for some time and then storms out of the office before we get a chance to engage with him. IPA are unable to monitor any jobsearch activity, nor are we able to assist him with his jobsearching as he does not allow us to even enter into conversation with him before storming out of the office. This is a pattern the jobseeker has displayed for some time”.

26. I accept the Secretary's submission that, although Mr Vatarescu was present for the interview on 29 November 2007, by his behaviour, he did not engage in the interview in a meaningful way. I find that Mr Vatarescu failed to comply with a term of his Activity Agreement and, in doing so, contravened s 624(1)(d) of the Act.

27.     Did Mr Vatarescu have a reasonable excuse?   During a telephone call on 7 December 2007, Mr Vatarescu told a Centrelink officer that he did not comply with the activity agreement because "… the job network member is incompetent and they do not know what they are doing".   Mr Vatarescu had attended a job capacity assessment with a registered psychologist on 4 July 2007 to identify any psychological or psychiatric impairment that might impact on his ability to comply with the requirements of newstart allowance.  The results were inconclusive and Dr Vatarescu was unwilling to undergo further assessments.  I find that Dr Vatarescu did not have a reasonable excuse. His dissatisfaction with the job network scheme is not a reasonable excuse.  

28.       I find that he committed a newstart participation failure on 29 November 2007.   That is his third participation failure within a twelve month period.  I find that Dr Vatarescu was subject to an eight week non-payment period for repeated failure (s 629(1)(a) of the  Act).  I note that he has already served that period from 13 September 2007 to 7 November 2007. 

29.     I therefore affirm the SSAT's decision made on 17 September 2008.

Proceedings 2009/5006

30.     I deal with each of the alleged participation failures in turn.

11 June 2008

31.     There is clear evidence Mr Vatarescu entered into an Activity Agreement with IPA on 10 June 2008. One of the requirements was that Mr Vatarescu attend “jobclub Mondays and Wednesdays for jobseeking and reverse marketing activities… from 10 June 2008”. A jobclub session was scheduled the next day, Wednesday 11 June 2008.

32. Was reasonable notification given to Mr Vatarescu that he had to attend the jobclub on Wednesday 11 June 2008 in accordance with s 624(1)(ii) of the Act)? I accept that Mr Vatarescu was notified of the appointment, however, I am not satisfied that reasonable notice was given. In my opinion, it was not reasonable for IPA to expect Mr Vatarescu to attend an interview the day after signing the agreement.

33.     The Secretary contended that Mr Vatarescu’s non-attendance demonstrated a pattern of behaviour showing his dissatisfaction with the job network system. I accept that he has been far from co-operative, even belligerent. However, even unco-operative jobseekers are entitled to reasonable notice from their JNM of an  appointment required by an Activity Agreement. Accordingly, I find that Mr Vatarescu did not commit a participation failure on 11 June 2008.

24 June 2008

34.     Mr Vatarescu was advised in his Activity Agreement that he had to attend on 24 June 2008.  On 16 June 2008, IPA telephoned Mr Vatarescu and advised that he was required to attend that appointment.   He was also reminded of this appointment at a Participation Interview at Braddon, ACT, on 20 June 2008. I am satisfied he received reasonable notice of this appointment. He did not attend the appointment.

35.     Did Mr Vatarescu have a reasonable excuse for not attending? Mr Vatarescu contacted Centrelink on 1 August 2008 at 2:40pm. A file note of the conversation states:

“Customer advised  he did not attend the appt on 240608 as he attended on 230608 and they did not help him so he felt it was useless attending on the 24/06/08”.

36.     Once again, Mr Vatarescu's dissatisfaction with the job network system is not a reasonable excuse for not attending the appointment.  I find that he committed a participation failure on 24 June 2008 (s 624(1)(d) of the Act).

CONCLUSION

37.     I appreciate that Mr Vatarescu is frustrated by his circumstances.  He has a project which he believes in but for which he cannot find assistance.  He clearly feels that the job network system is a waste of time.  He would rather concentrate on his project or obtain other suitable employment.  I understood his evidence to be that job opportunities in his field are very limited in Australia and even overseas. 

38.     However, if he is receiving newstart allowance then he must comply with his obligations under the legislation like anyone else. If he is dissatisfied with the service provided by the job network system he must pursue complaints through the proper avenues.  This Tribunal cannot assist him with that complaint.

DECISION

39.     In proceedings 2008/4353, I affirm the decision of the SSAT dated 25 September 2008.

40.     In proceedings 2009/5006, I set aside of the decision of the SSAT dated 11 December 2008 insofar as it found that Mr Vatarescu committed a participation failure on 11 June 2008 and substitute the decision that he did not commit a participation failure on that date. I otherwise affirm the SSAT decision that Mr Vatarescu committed a participation failure on 24 June 2008.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ………[sgd]..…….

Steven Mulipola, Associate

Date of hearing:  14 May 2009

Date of decision:  29 June 2009

Representative for the Applicant:             Self-represented

Representative for the Respondent:       Centrelink Legal Services and Procurement