Doan and Secretary, Department of Education, Employment and Workplace Relations

[2009] AATA 743

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 743

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2009/1386

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CHERIE DOAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date17 September 2009

PlaceMelbourne

Decision For reasons given orally at the hearing the Tribunal affirms the decision under review.

..............................................

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR. G.D. FRIEDMAN

No. 2009/1386

DOAN

and

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

THURSDAY, 17 SEPTEMBER 2009

MS C. DOAN appears in person
MR T. DE URAY appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:   The matter before me is whether there were participation failures on 28 May 2008 and 10 June 2008 for failure to enter into a Newstart Activity Agreement.  And the issue then is whether Ms Doan failed to comply with the requirement to enter into an activity agreement and, if so, whether she had reasonable excuse.  There is no dispute on the facts that, on 28 May 2008 and on 10 June 2008, Ms Doan attended the employment service provider, which was Salvation Army Employment Plus, that she refused to sign the activity agreement as was drafted by the employment service provider, that she proposed certain amendments to the activity agreement such as that she was able to use facilities herself, that financial assistance from the employment service provider to do training courses, etcetera, and professional assistance from the employment service provider to get work experience in her chosen field.  They were the amendments that she was seeking to the first activity agreement.

And the second one was on 10 June 2008 when she returned to the employment service provider with a signed version of her activity agreement, and she had made numerous handwritten changes, and those changes were that suitable work is any job related to her qualifications, such as food technologist, microbiologist, etcetera.  And she also added in financial assistance from the Salvation Army Employment Plus job interviews, and conditions if job network employment consultants can help job seekers to get suitable work they have got, if not, no salary.  In other words, their pay should be linked to their performance.  And there is no dispute that she did not sign the activity agreement, because the employment service provider would not accept the amendments that she had made to both of those.

Now, to qualify for Newstart Allowance, section 593 of the Social Security Act requires a job seeker to satisfy the activity test, and the activity test requires a job seeker to be actively seeking and willing to undertake paid work, other than paid work that is unsuitable.  And to qualify for Newstart Allowance, a job seeker is required to be prepared to enter into a Newstart Activity Agreement, or any other such agreement as said to the existing one if required.  And that is section 593(1)(c) and (1)(d) of the Act.  And section 624(1)(c) provides that a person commence a participation failure if the person fails to comply with the requirement to enter into a Newstart Activity Agreement. 

Now, on 28 May and 10 June 2008, she failed to agree either orally or in writing to terms and conditions contained in the activity agreement that she was required to enter into.  She failed to sign the activity agreements in the terms required by the secretary, and she amended them by inserting terms that were unreasonable on any objective view.  There is considerable authority for the proposition that a person who tries to make amendments to an activity agreements that’s not accepted by Centrelink has failed to enter into a Newstart Activity Agreement, and the relevant cases are Frketc v Secretary, Department of Family and Community Services [2005] AATA 721.

Now, the legislation provides, under section 624(2) of the Act, and the social security reasonable excuse, DEWR determination 2006.  Well, that defines what is a reasonable excuse.  And a reasonable excuse includes things such as illness or incapacity, and various other reasons for not being able to sign the activity agreement.  In this particular case, the activity agreement that was presented to Ms Doan was a fairly standard, ordinary form, which described her obligations in looking for work, and the assistance that she might expect.  Now, I accept that Ms Doan was unhappy with the terms.  I accept that Ms Doan felt that the amendments that she was proposing were appropriate, and that she felt that the activity agreement, in its form, presented to her was unreasonable. 

However, this is not a situation where parties negotiate a common law contract.  This is a different situation where the bargaining power is well and truly in favour of Centrelink.  And, unless there is something unreasonable as defined in the relevant legislation and the determination, then failure to sign the agreement represents a participation failure.  There is authority in the case of ReDunn v Secretary, Department of Family and Community Services (2004) 80 ALD 701.

The framework of negotiating activity agreements cannot support the contention that the negotiating power of each of the parties to the agreement is equal.  The secretary clearly has a greater negotiating power.

And that was also held by the tribunal in the case of Kronen v Secretary, Department of Education, Employment and Workplace Relations, where the applicant in that case was found to fail to appreciate that she does not have the full right of a contracting party at common law in this case.  Although I accept that Ms Doan has strong views about the contents of activity agreements, and that she wanted to draw attention to her concerns about the conduct of Job Network members generally, and their performance, I agree with the findings of the Social Security Appeals Tribunal that her refusal to sign the activity agreement on 28 May 2008 and 10 June 2008 constitute participation failures in accordance with section 624 of the Act.  Consequently, I am going to affirm the decision under review.

END OF EXTRACT