Dudzinski and Secretary, Department of Employment and Workplace Relations and Anor
[2006] AATA 743
•31 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 743
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/650
GENERAL ADMINISTRATIVE DIVISION )
Re
ANNA DUDZINSKI
Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
1st Respondent
And
SECRETARY, DEPARTMENT OF FAMILIES COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
2nd Respondent
DECISION
Tribunal Ms M J Carstairs, Member
Dr M Denovan, MemberDate31 August 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............................................
M J Carstairs
Presiding Member
CATCHWORDS
SOCIAL SECURITY- newstart allowance - cancellation - preparedness to enter into another Agreement- cancellation preferable to suspension - decision affirmed
Social Security Act 1991 ss 593(1), 601(1), 604(1C)
Social Security (Administration) Act 1999 s80
Freeman v Secretary Department of Social Security (1988) 87 ALR 506
Dudzinski v Rossington [2000] FCA 1659
Dudzinski v Centrelink [2003] FCA 1500
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Gidaro v Secretary Department of Social Security (1998) 83 FCR 139.
REASONS FOR DECISION
31 August 2006 Ms M J Carstairs, Member 1. Mrs Anna Dudzinski has asked this Tribunal to review a Centrelink decision made on 17 January 2005, cancelling her newstart allowance. In her “Notice of Appeal” filed by her husband Mr Waldemar Dudzinski, who represented her at the hearing, Mrs Dudzinski set out a number of grounds on which she objects to the decision, including that the decision was made in bad faith, infected by bias, and was beyond power.
2. The Social Security Appeals Tribunal also reviewed two other Centrelink decisions, which had been made just prior to the decision to cancel and had the effect of reducing Mrs Dudzinski’s rate of newstart allowance. Mrs Dudzinski succeeded on those appeals before the Social Security Appeals Tribunal. Those other decisions therefore are not part of the review before us.
3. Thus, the matter before us is limited to the cancellation of Mrs Dudzinski’s newstart allowance on 17 January 2005. The Centrelink officer who cancelled her allowance stated that Mrs Dudzinski had demonstrated that she was not meeting her activity test obligations and could no longer satisfy the eligibility criteria for newstart payments.
ISSUES
4. To decide whether Centrelink, as the responsible agency for newstart payments, was correct in cancelling Mrs Dudzinski’s payment, we must look at two matters:
§ the qualification provisions for newstart allowance - found at s593 of the Social Security Act 1991 (the Act); and
§ the Secretary’s powers to cancel a payment - found in the Social Security (Administration) Act 1999 (the Administration Act).
BACKGROUND
5. Mrs Dudzinski is an Australian citizen who was born in Poland in 1953 and settled in Australia in 1984. She has tertiary qualifications taken out since coming to Australia, including an Honours degree in Applied Science, a Graduate Diploma in Library and Information Studies, and a Graduate Diploma in Legal and Justice Studies. In addition she holds a Diploma in Hotel Management from Poland. In Poland she worked as a hotel receptionist and cashier. Her recent employment history in Australia includes periods of employment at Queensland University of Technology between 1993 and 1996 in temporary and casual positions; at the Queensland Museum as a cataloguing librarian from February to September 1996; various library locum positions between 1997 and 1999; and at the Queensland Department of Tourism, Racing and Fair Trading in 2002 as an administrative officer/librarian.
6. Mrs Dudzinski has applied for and received income support from Centrelink by way of newstart allowance, and was receiving this payment between 2003 and 2005. Newstart allowance is one of the Centrelink payments available to support people over the age of 21 while they look for work. Those applying for newstart allowance must satisfy the activity test or be exempted from it.
7. Broadly speaking, the activity test requires the person to actively seek and be willing to undertake suitable work, or be involved in activities that will improve the person’s prospects of obtaining employment. Exemptions from the activity test can be given for a number of reasons, including grounds of sickness, and there were times during 2003 and 2004 when Mrs Dudzinski was granted exemptions.
8. Those on newstart allowance must also sign a Preparing for Work Agreement, or, if aged over 50, a Participation Agreement. Mrs Dudzinski turned 50 in September 2003. Those who receive newstart allowance must register with a Job Network Provider. The material before us (exhibit A15) showed that under the Employment Services Contract between service providers and the second respondent, the providers, which include a number of corporate and charitable organisations, provide job search support services and intensive support services to eligible job seekers. The services include employment focussed activity and strategies to achieve sustainable employment outcomes. Sarina Russo Job Access (Australia) (Sarina Russo) was a corporate job network provider and Mrs Dudzinski was assigned to this provider in the period under review.
QUALIFICATION FOR NEWSTART ALLOWANCE
9. With regard to a person’s qualification for newstart allowance, s593(1) of the Act provides that an unemployed person will be qualified for newstart allowance if, amongst other things, he or she satisfies the activity test.
10. Section 601(1) of the Act provides that the activity test is concerned with a person actively seeking and willing to undertake paid work. The Act identifies additional ways to satisfy the activity test, but these are not in issue here. As pointed out by the Federal Court in Dudzinski v Rossington [2000] FCA 1659, the activity test is only one part of the qualification requirements for newstart allowance.
11. The Social Security Appeals Tribunal concluded that Mrs Dudzinski was complying with the activity test set out in s601 of the Act. At the hearing before us that conclusion was not challenged by the respondents. We agree that Mrs Dudzinski was complying with the activity test by applying for positions and reporting back to Centrelink fortnightly.
12. There are separate qualification criteria in addition to the broad activity test that must be met. Sub-sections 593(1)(c) and 593(1)(d) of the Act are among them. Those subsections provide as follows:
(c)if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and
(d)if subsection 604(1) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and
…...
13. Section 604(1) of the Act provides that the Secretary may require those in receipt of newstart allowance to enter into a Newstart Activity Agreement. Excluded from the requirement are those who have medically-related exemptions.
14. Mrs Dudzinski became a party to a Newstart Activity Agreement by signing a Preparing for Work Agreement on 11 April 2003 (T10). The Agreement set out that she must comply with certain terms until 11 June 2003. Other terms, however, referred to activities required of her after 11 June 2003. Although Mrs Dudzinski’s Agreement was 2 years old when her newstart allowance was cancelled, we were satisfied that the Agreement had not expired. That is she was a party to an Agreement.
15. At the interview conducted on 11 April 2003 to draft the terms for Mrs Dudzinski’s Preparing for Work Agreement, discussions were held between Mrs Dudzinski, her husband, and a Centrelink contact officer, Mr D Williams. The document which Mrs Dudzinski signed appears to have contained the following terms and/or explanations which were part of set-text in the document and not the subject of negotiation.
§ … this Agreement is an Agreement between me and the Secretary under Section 544A(5) or Section 604(1C) of the Social Security Act 1991;
§ ….this Agreement is… a Newstart Allowance Activity Agreement under the Social Security Act 1991;
§ I understand that:
- this Agreement may be varied;
- this Agreement does not override my obligations in responding to Centrelink requests.
16. Other terms in the Agreement appear to have been tailored to Mrs Dudzinski specifically, and these were ‘negotiated’ at the interview rather than forming part of the pre-set text in the documents. In this category were the following undertakings:
·I will register with a Job Network Member for Job Matching within 5 working days and maintain my registration.
·I will from 11 APR 2003 to 10 JUN 2003 undertake 10 job search contact(s) each fortnight and record these in my Jobseeker Diary. I will return my completed Jobseeker Diary on 10 JUN 2003. These contact(s) will include all types of suitable work, including part-time, casual and full-time.
Of the 10 job search contact(s) I have agreed to undertake and record in my Diary:
-At least 1 contact per fortnight will be made through a Job Network Member
-4 job search contact(s) each fortnight will also be recorded on my fortnightly application for payment forms from 11 APR 2003 to 10 JUN 2003.
·I will from 11 JUN 2003 undertake 10 job search contact(s) each fortnight and record these job search contact(s) on my application for payment forms. These contact(s) will include all types of suitable work, including part-time, casual and full-time.
Of the job search contact(s) I have agreed to undertake and record on my application for payment forms:
-At least 1 contact per fortnight will be made through a Job Network Member
17. By signing the Preparing for Work Agreement Mrs Dudzinski also acknowledged a number of statements which appeared as text under the heading Understandings in the Agreement, including:
· If I do not keep to the terms of this Preparing the Work Agreement, my allowance may be stopped…
· This Agreement may be varied;
· This Agreement does not override my obligations in responding to Centrelink requests;
18. Mrs Dudzinski maintains that she was forced to sign this Agreement against her will.
19. Mr Williams gave evidence and was cross-examined about events that occurred during the interview. In addition to his oral evidence we had the assistance of the note Mr Williams completed on the day of the interview (T9). Mr Williams set out in this note that both Mr and Mrs Dudzinski raised a number of questions about the Agreement itself, and its legislative basis. They also had concerns about a number of process issues, including when payments would commence, and whether they could change the payment day. Mr Williams recorded that despite their concerns and after lengthy discussions (4 hours in all), Mrs Dudzinski indicated her willingness to sign. In any event the document at T10 is signed and there was no suggestion that it was not Mrs Dudzinski's signature.
20. The following month Mr Dudzinski raised the question that his wife was forced to sign the Agreement. At the hearing, Mr Dudzinski maintained that Mrs Dudzinski was an unwilling signatory, however Mr Williams denied this. Mr Williams’ record of the interview stated that he had explained to Mr and Mrs Dudzinski that all jobseekers were required to sign an Agreement and be registered with a job network member and that he had told Mrs Dudzinski that if she wished to be paid she would have to sign the Agreement. We note that Mr and Mrs Dudzinski have twice before taken a similar issue to the Federal Court, so the information that Mr Williams provided on these matters could not have been new to them. Mr Williams also recorded in his note of the interview that he asked Mrs Dudzinski to peruse the forms and decide if she was happy to sign to the terms they had discussed.
21. We accept Mr Williams’ oral evidence that he did not have any malicious purpose when he conducted the interview with Mrs Dudzinski and did not force Mrs Dudzinski to sign the Agreement. Mrs Dudzinski did not give oral evidence at the hearing; nor did she make reference to the interview in her affidavit (exhibit A21). We accept Mr Williams’ evidence about the interview and conclude that there was no substance in the assertion that he forced Mrs Dudzinski to sign, or that she signed under duress.
22. Another matter raised by Mr Dudzinski on behalf of his wife was there was no proof that the Preparing for Work Agreement was properly authorised under the Act by both Secretaries (to the respondent Departments) as was required by s604(1C) of the Act. However in our view nothing turns on this point. On its face, the document signed by Mrs Dudzinski on 11 April 2003 (T10) states that it is a Newstart Activity Agreement, the reference being as follows:
…. at the appointment we prepared the following Preparing for Work Agreement. (Depending on the Allowance received, this Agreement is a Youth Allowance Activity Agreement or a Newstart Allowance Activity Agreement under the Social Security Act 1991.)
23. Mr Dudzinski’s issue about the authorisation of Agreements has little ultimate significance because s593(1)(c) and s593(1)(d) are expressed as alternatives. Section 593(1)(c) refers to those not party to an Agreement; s593(1)(d) to those who are. Had we concluded that Mrs Dudzinski’s Preparing for Work Agreement had not been authorised by the required Secretaries’ signatures, we would have been satisfied that Mrs Dudzinski lost qualification under s593(1)(c) – as a person who was not a party to a Newstart Activity Agreement. But we were satisfied that she was party to a valid agreement.
24. The respondents were unable to produce the original approvals for the particular forms. We were told in the course of the hearing that the approvals were likely to be in temporary storage and were not easily located as a result of Machinery of Government changes that took place in December 2004. We have no real reason to doubt that the approvals had been given in accordance with government practice and the requirements of the Act. We consider that even if it were proven (which it is not) that the respective Secretaries had not authorised the particular documents, the matter would come within the principles expressed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, namely that the test for determining validity is to ask whether it was a purpose of the legislation that an act done in breach of a provision should be invalid. In the context of s593(1) it could not be said that that the factual question of whether a person is or is not party to an Agreement turns solely on authorisation of the document.
25. As set out in our findings below we concluded that Mrs Dudzinski lost qualification under s593(1)(d) of the Act. But, the real basis for her no longer meeting her qualification requirements, whether one is looking at s593(1)(c) or s593(1)(d), rests upon her not being prepared to enter into another such agreement, a requirement within both sub-sections.
26. We now turn to consideration of Mrs Dudzinski’s actions, her written statements, and her behaviour towards Centrelink officers and Sarina Russo staff upon which we formed our view about her preparedness to enter another agreement.
27. We had evidence about the scheduling of appointments for Mrs Dudzinski with Sarina Russo. The first interview that Mr and Mrs Dudzinski attended took place on 20 July 2004, after being rescheduled numerous times at Mrs Dudzinski’s request. An indication of her pattern of requesting change to appointment times is reflected in a computer notation dated 11 June 2004 (T47), alerting Centrelink staff who might take further such calls:
Do not reschedule… or ask Sarina Russo to reschedule appts. …Cus(tomer) has been warned by DEWR not to change appointment as has done so many times. Have spoken to cus and partner and they understand they cannot reschedule….appts. They understand payments will be suspended if… does not turn up to appts.
28. However the interview did take place. A note (exhibit A8) prepared by Mr C Huddy, contracts manager with Sarina Russo, concludes that after a two hour interview on 20 July 2004 the meeting effectively failed. No paperwork was agreed upon and completed. Mr Huddy’s note records that Mrs Dudzinski demanded that she be provided with the professional qualifications of the Sarina Russo staff that were interviewing her, and continued to question the value to her of any assistance from Sarina Russo in relation to job interviews and interview presentation skills. Mrs Dudzinski had made plain for some time that she did not want to be referred to any job network member (exhibit A6). Her views on that appear to remain unchanged to date.
29. On our view the Sarina Russo report to Centrelink about the difficulties it encountered in dealing with Mrs Dudzinski and the failed attempts to assist her with her employment efforts, provides further background on which to decide whether Mrs Dudzinski was prepared to enter into another …agreement. It is clear from the documentary materials provided to us that intervention by a job network member would be contemplated within proposed agreements. Furthermore, Mrs Dudzinski’s obstructive behaviour with Sarina Russo mirrored a pattern of behaviour she was demonstrating in her dealings with Centrelink.
30. For example she was scheduled to attend an appointment at Centrelink in August 2004 and Centrelink had informed her in letters throughout that year that she needed to attend an interview to negotiate a Job Search Plan and might be required to enter an Agreement. Mr Dudzinski asked to move the scheduled appointment from August; the date was changed to 1 October 2004. On 30 September 2004 Mr Dudzinski telephoned to cancel the appointment, as he had more important matters to deal with in his Federal Court actions.
31. It is clear that cancelled or rearranged appointments were more typical than attendances for Mrs Dudzinski. As the Social Security Appeals Tribunal pointed out, one interview scheduled to take place in December 2003 was rescheduled 12 times by Centrelink at Mrs Dudzinski’s request between then and July 2004, before being cancelled altogether.
32. By the end of 2004 Sarina Russo informed Centrelink that their efforts to conduct interviews with Mrs Dudzinski to assist her work efforts had failed again. Mrs Dudzinski’s refusal to deal with job network members must be understood in the context of her work history which shows that her employment has been intermittent despite her ample qualifications and has never resulted in ongoing work of any length. Most likely age will be an additional barrier to employment, especially the longer she is out of work. It was plainly unreasonable for Mrs Dudzinski to resist the assistance from Sarina Russo, an organisation with experience in placing people in work.
33. On 14 December 2004 Mrs Dudzinski attended an interview at Nundah Centrelink office to negotiate a Participation Agreement (T97), as Mrs Dudzinski now was over 50. The note of the interview (T107) stated that Mrs Dudzinski :
· was not willing to enter into a participation agreement at the moment….
· did not want to participate with the job network…(T107)
34. Mrs Dudzinski was then given a draft Participation Agreement to consider that included participation with a job network member. She was allowed 21 days to decide whether she would sign. She was told that her payments would cease if she had not signed by 6 January 2005. In a letter to Centrelink dated 14 December 2004 Mrs Dudzinski stated:
If you think or believe that my signature on the “Claim for Job Network Assistance while Looking for Work” gives you the right to refer me to case managers, than (sic) I wish to invalidate my signature on that form. Also I wish to strike out the term(s) concerning Job Network members and to pullout from Job Network services without losing unemployment benefit called Newstart Allowance.
35. After Mrs Dudzinski failed to sign by the due date of 6 January 2005 the decision was made to cancel her payments.
36. Section 593(1)(d) requires that at all times during the period when a person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement. The words prepared to enter into another such agreement should be given their ordinary meaning. It seems to us that much can be inferred about what a person is prepared to do from their actions, and from what the person states that he or she is not prepared to do. A person will demonstrate that he or she is not prepared to enter into another agreement where there is a course of behaviour, observable in this case, that demonstrates that the person is deliberately avoiding attendances at appointments to negotiate agreements or to draft documentation. This is especially so, where, as here, Centrelink has provided extensive information about why these activities are required.
37. A person also demonstrates that he or she is not prepared to enter into another agreement if the person refuses to accept certain terms that form part of agreement-making for newstart recipients. Section 606(1) of the Act provides that a newstart activity agreement can include terms relating to activities approved by the Secretary, including, amongst other things, job search activities; training that would help in searching for work; measures designed to eliminate or reduce any disadvantage the person has in the labour market; and participation in labour market programs.
38. We were satisfied that Mrs Dudzinski’s repeated failure to attend interviews; her constant requests that interviews be rescheduled; her numerous demands that policy documents and legislation be supplied to her; and her demands that interviewing staff provide proof of delegations and qualifications constitute unreasonable behaviour on her part and indicated to us that she was not prepared to enter into another …agreement instead of the existing agreement.
39. Mrs Dudzinski has acknowledged by signing the 2003 Agreement that the Agreement might be varied. Another of its clauses clearly stated that the Agreement did not override Mrs Dudzinski’s obligations to respond to Centrelink requests. Clearly Mrs Dudzinski was not prepared to carry out the legitimate requirements being made of her by Centrelink.
40. It was clear from Mrs Dudzinski's case before the Tribunal that she does not accept being ascribed disadvantaged jobseeker status. She has a strongly held belief that those at Centrelink and at Sarina Russo who have less tertiary qualifications could not possibly assist her to find work. On these matters it seems her attitude has changed little since His Honour Justice Spender observed in Dudzinski v Centrelink [2003] FCA 1500 (at para 37):
The fact that Mrs Dudzinski is the view of the utility of Job Network Members in obtaining employment does not provide a lawful basis for declining to sign on the proffered Newstart Agreement….. this is a case where Mrs Dudzinski has simply refused to do what would confer on her an entitlement to be paid NSA. In my judgment the obligation to sign a PFWA, which agreement includes a requirement that the applicant will register with a Job Network member the job matching within five working days and maintain a registration is an obligation which the Secretary is entitled by the act to impose upon claimants for Newstart Allowance.
41. We are satisfied that Mrs Dudzinski ceased to qualify for newstart allowance under s593(1)(d) of the Act because:
§she was a person to whom s604(1) applied: the Secretary could require her to enter an agreement, because she was not someone whose newstart allowance was paid under s593(1B) of the Act: s604(1AA);
§she was already a party to the Agreement dated 11 April 2003;
§she demonstrated by her actions (and those taken on her behalf by Mr Dudzinski), her written statements, and her persistently obstructive behaviour, that she was not prepared to enter into another such agreement instead of the existing agreement.
WAS CENTRELINK CORRECT TO CANCEL MRS DUDZINSKI’S NEWSTART ALLOWANCE?
42. Section 80 of the Administration Act gives the Secretary a discretion to cancel a newstart allowance:
80.(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
43. If satisfied that a person is not qualified for a payment, a decision maker must choose between cancelling or suspending the entitlement. Careful consideration should be given to all the circumstances when exercising that discretion; more significant consequences usually arise under the Act as a result of cancellation than will arise from a suspension: Freeman v Secretary Department of Social Security (1988) 87 ALR 506.
44. Mrs Dudzinski, or Mr Dudzinski acting for her, engaged in a pattern of obstructive behaviour, that included cancelling or re-scheduling Centrelink and job network interviews designed to assist Mrs Dudzinski improve her job prospects, but also designed to assist her to comply with her obligations under the Act to be in an Agreement, and have it changed from time to time. The Act contemplates that happening. This was made plain to Mrs Dudzinski by her existing Agreement;
45. Mrs Dudzinski’s obstructive behaviour related to matters that were central to her qualification to obtain the payment, for the reasons set out above in relation to s593(1)(d). A greater degree of seriousness attaches to behaviour that goes to qualification requirements under the Act. The seriousness of the matter in issue should be taken into account when considering whether to cancel rather than suspend a person’s payment: Gidaro v Secretary Department of Social Security (1998) 83 FCR 139;
46. Centrelink had already taken action on at least one occasion to suspend Mrs Dudzinski’s payment after the 2003 Agreement was struck. She had been issued with a warning by the imposition of this lesser penalty. Despite this, she had persisted with the behaviour that obstructed Centrelink and Sarina Russo carrying out their tasks as related to her newstart allowance and the obligations that she has under the Act in order to receive that allowance.
47. We conclude that it was necessary for Centrelink to take stronger action than merely to suspend Mrs Dudzinski’s newstart allowance, as earlier warnings had achieved little observable result. In all the circumstances we are satisfied that cancellation is appropriate.
DECISION
48.The Tribunal affirms the decision under review.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, and Dr M Denovan, Members
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 19 April 2006, 10 and 11 July 2006
Date of Decision 31 August 2006
For the Applicant Mr W Dudzinski
For the Respondent Mr S McLeod of Counsel
Australian Government Solicitor
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