ANTHONY KING and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 914
•27 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 914
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2159
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY KING Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date27 November 2009
PlaceMelbourne
Decision The decision under review is affirmed.
(Sgd) John Handley
Senior Member
SOCIAL SECURITY ‑ Applicant did not enter into a newstart activity agreement on 3 occasions – insisted that the agreements be drafted in quantum language – job network provider refused to alter the text or the language of the agreement – conduct of applicant amounted to newstart participation failures – no reasonable excuse for committing the participation failure – reasonableness of the excuse as understood or believed by the applicant irrelevant – proof of delegation by an officer of the respondent to the job network provider made available and considered – decision affirmed
Social Security (Administration) Act (Cth) 1999 s 23(1), s 234, s 234(1) and s 234(7)
Social Security Act 1991 (Cth)
Social Security Legislation Amendment (Employment Services Reform) Act 2009 (Cth) s 605, s 605(1), s 606, s 606(1A), s 624, s 624(1), s 624(1)(c), s 624(1)(e), s 624(2), s 624(2A), s 624(2B), s 629, s 629(1) and s 629(1)(a),
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268
Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1115
Re Dunn and Secretary, Department of Employment and Workplace Relations [2007] AATA 1031
REASONS FOR DECISION
Mr John Handley, Senior Member 1. Mr King, the applicant in these proceedings, applied to review a decision made by the Social Security Appeals Tribunal (the SSAT) on 12 May 2009. The SSAT then decided to affirm a decision made by an Authorised Review Officer (ARO) of Centrelink on 18 March 2009 (T16). That decision was the imposition of an eight week non-payment period of Newstart Allowance (NA) to the applicant by reason of him having committed three newstart participation failures (NPFs) within a 12 month period.
2. The events giving rise to this application were not in dispute and may be briefly summarised as follows.
3. The applicant was a NSA recipient between March 2003 and May 2008. In October 2008 he again claimed NSA and Interact Employment Services (Interact) was appointed as his employment services provider.
4. On 23 October 2008 he entered into a Newstart Activity Agreement (NAA) with Interact and thereafter was paid NSA.
5. The applicant refused to enter into an NAA prepared by Interact on 30 January 2009 and 16 February 2009. He also failed to attend an appointment with Interact on 5 February 2009. The applicant's omissions on 30 January and 5 and 16 February were alleged by the respondent as constituting NPFs and by reason of those failures occurring without reasonable excuse and within a 12 month period, Centrelink was entitled to deny payment of NSA to the applicant for a period of eight weeks. Payments were in fact withheld for a period of eight weeks, the applicant did not seek a stay of that decision and nothing would be achieved by the applicant entering into an employment pathway plan within the meaning of the Social Security Legislation Amendment (Employment Services Reform) Act 2009 (the Act) which has amended the Social Security Act 1991 and the Social Security (Administration) Act 1999 (the Administration Act) with effect from 1 July 2009.
6. The applicant appeared without representation at the hearing. The respondent was represented by Mr Perdon.
the legislation
7. Section 234(1) of the Administration Act permits the respondent to delegate its powers to an officer. An officer is defined at s 23(1) of the Administration Act as a person performing duties or exercising powers or functions in relation to the social security law. Additionally the respondent may delegate its powers under the social security law to an organisation that performs services for the Commonwealth. The respondent has asserted that it delegated its powers to Interact and employees of Interact. Accordingly both Interact and its staff (officers) are permitted by the legislation to perform duties or exercise powers or functions.
8. Section 605 of the Act provides that a person who has claimed NSA is required to enter into an NAA. Interact and its officers, pursuant to their respective delegations, prepare NAA's.
9. Section 606 of the Act refers to the terms of an NAA and the requirement of an applicant to undertake one or more of the activities that are regarded as suitable and which are recorded in the NAA. By s 606(1A) of the Act an NAA must not contain certain provisions which are recorded in the Social Security (Activity Agreement Requirements) (DEST) Determination of 2006. None of the Agreements to which the applicant was required to enter contain provisions of the type recorded by that Legislative Instrument.
10. Section 624 of the Act provides that a person commits a NPF if there is a failure to comply with one of the requirements or obligations or events described within the section. Relevantly, s 624(1)(c) of the Act provides that a NPF will be established by failing to comply with a requirement to enter into a NAA.
11. Section 629(1)(a) of the Act provides that NSA is not payable to a person for a period of eight weeks if the person has committed a NPF on three occasions within a 12 month period.
12. Section 624(2) of the Act provides that a failure to commit or comply with or satisfy one of the events described at s 624(1) of the Act will not constitute a NPF if the person satisfies the Secretary (the respondent) that there was a reasonable excuse for the failure. The belief by the person of the reasonableness of the excuse is immaterial. The reasonableness of the excuse (refer s 624(2A) of the Act) is to be determined by reference to Legislative Instrument Social Security (Reasonable Excuse) (DEEWR) Determination 2006. None of the events within that Legislative Instrument apply in the present circumstance. Additionally, s 624(2B) of the Act provides that an assessment of the reasonableness of an excuse is not confined only to those matters found within the Legislative Instrument.
the evidence
13. The applicant said that he did not sign the NAA of 30 January 2009 because the language of it was inconsistent with his belief and practice that written language should be in the nature of a style described by him as quantum language. He said that conventional English language contains many presumptions and assumptions and is frequently ambiguous. He said quantum language is now time, no past – a higher level of communication. He said that he would not sign the NAA in the form presented to him and sought to have it redrafted in quantum language. An officer of Interact refused to do so. The applicant said that he then made a written complaint (refer T14, p37) to which there was no response or acknowledgement. More precisely, (and by way of describing the style or type of quantum language) at page 39, the applicant recorded that the NAA . . . is not accurate as it is full of presumption, assumption, and modified language; which could lead to be misleading. At the foot of the complaint advice (p38) there was a handwritten notation in the following terms: 30/01/2009. Handed in person by Anthony King. Did not wish to sign as signing is a "curtsy to the devil". I assume for the purposes of these reasons that those words were recorded by an officer of Interact who received the written complaint.
14. The applicant asserted that Interact had breached him rather than he being in breach of his obligations to enter into an NAA. The breach committed by Interact, it was asserted, was the failure to respond to his complaint concerning the language used in the NAA thereby amounting to discrimination.
15. The applicant agreed that he refused to attend an interview with Interact on 5 February 2009. He said he was notified of the appointment and was told that he would be expected to sign another NAA. The applicant said he wanted to talk to a manager because there had not been a response to his letter of complaint (refer earlier). The applicant said that he would not enter into an NAA until it was written in quantum language and therefore would not attend the office of Interact if the only purpose was to complete another NAA.
16. On 16 February 2009 the applicant did attend an office of Interact and recorded the signature and date as Mickey Mouse 16/2/09 (refer p26). The NAA recorded nine compulsory activities that he was compelled to undertake in order to receive NA. The applicant said that by affixing the signature Mickey Mouse he wanted Interact to understand that by a failure to reply to his earlier written complaint and continuing to expect him to sign a document which was in a style of language to which he did not subscribe, he deliberately provided a fictitious signature because the document which was provided to him was equally fictitious. He said had the language of the document been changed to the style of quantum language he would willingly sign it but he was never given that opportunity.
17. In cross examination the applicant agreed that the English language is the current language used orally and in writing within Australia but he maintained that the construction of the language should be changed and quantum language should be used. He agreed that subsequent to 16 February 2009 he has lodged relevant forms with Interact which are recorded in the English language and he has signed NAAs but under financial duress (refer also p115). The applicant agreed that he is not known by the name Mickey Mouse, he agreed that he was not being serious by recording that signature and agreed that it, and the document to which he was expected to sign, were equally fictitious.
conclusion and reasons for decision
18. I am satisfied that the applicant has committed three NPFs within a 12 month period. He failed on three occasions to enter into a NAA (refer s 624(1)(c)).
19. The applicant was required under s 605 of the Act to enter into an NAA by reason of him having made a claim for NA. Whilst the discretionary word may appears at s 605(1) there would appear no doubt that Interact, by its delegation from the respondent, did require the applicant to enter into an NAA. On 30 January 2009 he refused to do so and accordingly there was an absence of intention to enter into or be committed to the NAA. The refusal to attend the Interact office on 5 February where he knew that he would be required to enter into another NAA attracts similar consideration to that of 30 January 2009 namely, the applicant refused to sign the NAA because it had not been drafted into quantum language. The applicant did not sign the agreement then available to him because he refused to attend the Interact office. There was again evidence of a failure to enter into the NAA.
20. On 16 February 2009 the applicant did attend the Interact office and signed an NAA in the signature Mickey Mouse which was not his name nor was it the nomenclature of which he is known. He agreed that the signature was fictitious, that he was not intending to be serious and regarded the NAA, then made available to him, as also being fictitious because it was not written in quantum language. He had no intention of being bound by or to comply with it.
21. The NAA signed on 16 February 2009 is found at pages 24 – 26 inclusive. It contains activities described as being compulsory comprising the requirement to undertake job enquiries, job training, accept referrals to suitable employment, seek employment, attend interviews, prepare applications for employment, check newspapers and undertake internet job searches. None of those compulsory activities are inconsistent with Legislative Instrument Social Security (Activity Agreement Requirements) DEST Determination 2006. I am therefore satisfied that there has been compliance by the respondent and its delegated organisation (Interact) with s 606 of the Act with respect to the NAA signed on 16 February 2009.
22. The NAA that the applicant refused to sign on 30 January 2009 and the NAA that was available to him to sign on 5 February 2009 were not lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The applicant did not allege any terms within those NAAs were unreasonable (although I do acknowledge that he did not ever observe the contract of 5 February 2009). There is nothing which would point to the compulsory activities in either of those two NAAs being any different to or inconsistent with the terms of the NAA of 16 February 2009 and I note that the NAA of 23 October 2008 and 14 May 2009 contain similar compulsory activities with which the applicant would be obliged to comply in order to receive NA. There is nothing which would point to the terms of the NAA of 30 January 2009 and 5 February 2009 as containing compulsory activities which would be unsuitable (refer s 606(1)) nor is there any reason to assume that the terms are inconsistent with the Legislative Instrument. Especially by reason of the applicant not objecting to those terms, at least of the contact that he did observe on 30 January 2009, I am not prepared to find that any of the three NAAs to which he failed to enter would be inconsistent with the obligations of the Secretary or the delegated organization under s 606 of the Act.
23. I am not satisfied that the applicant did have a reasonable excuse which would satisfy the Secretary for committing any of the three NPFs (refer s 624(2)).
24. The applicant insisted that each of those NAAs be drafted using quantum style language. Despite his agreement that English is the predominant language in Australia used orally and in written form, he insisted that the NAA on each occasion be drafted in a language that he preferred. He persisted with that condition of signing on each of the three occasions. There is nothing unreasonable in drafting NAAs in a language readily understood, comprehended and adopted by the overwhelming majority of the Australian public. There is nothing unreasonable by the refusal on the part of a delegated organization or its officers to redraft each NAA according to the applicant's preference. His insistence on use of quantum language is inconsistent with his mutual obligation to undertake compulsory activities in order to secure employment in consideration for receipt of Commonwealth funds. There is nothing in law which permits the applicant to negotiate with the respondent concerning the terms of an NAA (refer Re Dunn and Secretary, Department of Employment and Workplace Relations [2007] AATA 1031). Indeed it would appear that the applicant did not propose any negotiation of the written language of each of the NAA but rather attempted to impose a unilateral insistence failing which he would, and did, refuse to enter into each NAA. (Refer also Kronen v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1268, decided after the hearing but before delivery of this decision. Finn J at paragraphs 38‑45 discussed the word negotiate appearing in s 605(3). In any event, for the reasons given above, the conduct of the applicant probably was not one of negotiating but rather of insistence of the NAA's being drafted in a language of his choosing).
25. In concluding this part, the applicant obtains no comfort from any of the stated circumstances referred to in the Legislative Instrument Social Security (Reasonable Excuse) DEEWR Determination 2006 and in the circumstances I reaffirm the view expressed earlier that there has been no reasonable excuse offered by the applicant and on each occasion he did commit a NPF.
26. In the circumstances, and by regard to s 629 of the Act, each of the three NPFs occurred within a 12 month period. Section 629(1) of the Act prohibits payment to the applicant for a period of eight weeks in those circumstances.
delegation of interact and its officers
27. On 8 October 2009 being approximately three weeks before the hearing of this review, Marshall J in the Federal Court delivered a decision in Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1115 (Piotto). Mr Piotto had been the subject of a finding of three NPFs in a 12 month period. His Honour decided that by reason of there not being any evidence before the Tribunal of the authority or delegation of the job network provider or its officers there was not in the circumstances any lawful or valid delegation in the finding of participation failures.
28. It therefore follows from that analysis that the job network provider and its officers in Piotto could not lawfully devise and produce activity agreements and Mr Piotto did not commit any NPF.
29. Mr Perdon produced two documents at the hearing of this review which he submitted pointed to the lawful authority of Interact and its officers to prepare and submit NAAs to the applicant. One document was a delegation pursuant to s 234 of the Administration Act dated 27 June 2008 and signed by Mr Pratt, Acting Secretary. He delegated (Ex A):
. . . to each person engaged by an Employment Services Provider to perform functions or to provide services under a relevant arrangement, each of my powers under or referred to in a provision of the Social Security Act 1991 or the Social Security (Administration) Act 1999 contained in Schedule 1 of this instrument, . . . .
Relevantly, the powers recorded include s 605 and s 606 of the Act.
30. The delegation quoted above appears to extend to persons employed by an employment services provider and would appear to constitute delegations of powers under s 234(1) of the Administration Act to officers as defined at s 23(1) of the Administration Act.
31. Additionally Mr Perdon provided a statement from Glenice O'Shea the Employment Services Manager of Interact, which recorded that at January and February 2009 (Ex B):
. . . Fabrizio Geraci and Raymond Dando were employed by Interact Employment, a Provider of Australian Government Employment Services, commonly known as a Job Nework Member, to perform functions and to provide services under the Employment Services Contract between Interact Employment and the Department of Employment and Workplace Relations.
32. That document would tend to indicate that the Employment Services Manager of Interact has confirmed that the named persons were employees at January and February 2009 (being the dates of the NPFs) and they were, in the circumstances, officers thereby attracting the delegation under s 234(1) and paragraph 4 of the delegation of Mr Pratt.
33. However Mr Perdon was unable to provide any document which recorded a delegation by the Secretary to Interact. He said such a document would more than likely be a contract between the Secretary and Interact which would contain a number of commercial in confidence type clauses. He sought, and was granted, 14 days to produce a document of any type which would demonstrate a proper delegation to Interact as an organization that performs services for the Commonwealth (refer s 234(7) of the Administration Act).
34. On 13 November 2009, Mr Perdon lodged a copy of the employment services contract between Interact and the delegated Victorian Contract Manager of the respondent. It was executed on 2 May 2006 and the service period of it operated between 1 July 2006 and 30 June 2009.
35. The three events giving rise to the NPF's occurred during the currency of the contract.
36. Paragraph 6.2 of the contract provides that Interact will be provided with NAA forms by the Department of Workplace Relations and (at paragraph 6.7) Interact will negotiate with and have a NSA applicant sign a NAA.
37. The applicant was forwarded a copy of the employment services contract on 17 November and invited to comment within seven days. At the date of delivering of these reasons, there has not been any response by the applicant.
38. As found earlier, I am satisfied that the terms of the NAA are consistent with legislation. I am also satisfied, having read the documents lodged on 13 November 2009, that Interact was lawfully and validly delegated as a job network provider to the applicant. There has not been, in the circumstances, any omission of evidence which caused the primary decision in Piotto to be set aside on appeal.
39. For all of the above reasons, the decision of the SSAT under review by these proceedings will be affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member
Signed: Grace Carney Personal Assistant
Date of Hearing 28 October 2009
Date of Decision 27 November 2009
Solicitor for the Applicant Self Represented
Departmental Advocate Mr D Perdon, Centrelink
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