Dunn and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1031
•29 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1031
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/737
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | Andrew Dunn | ||
Applicant
| And | Secretary, Department of Employment and WorkPlace Relations |
Respondent
DECISION
| Tribunal | Ms N Isenberg, Senior Member |
Date 29 January 2007
Place Sydney
| Decision | The Administrative Appeals Tribunal affirms the decision under review. |
............[sgd]...........
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – unemployment benefits – Newstart Allowance – activity test breach rate reduction period – unreasonable delay entering into Preparing for Work Agreement – Job Search Plan – non-compliance with the plan - decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999
Social Security Act 1991 – sections 593, 601, 604, 605, 606(1-4), 607, 625(1), 625(1A), 644AA, 644AE
REASONS FOR DECISION
| 29 January 2007 | Ms N Isenberg, Senior Member |
DECISION UNDER REVIEW
On 27 January 2006 Centrelink imposed an 18% activity test breach rate reduction period on Mr Dunn on the basis that he had failed to sign a job search plan (“JSP”) and enter into a Preparing for Work Agreement (“PFWA”). As a result, Mr Dunn did not meet the activity test requirement and incurred an activity test breach penalty.
ISSUE BEFORE THE TRIBUNAL
I had to decide whether the decision to apply an 18% activity test breach rate reduction period on Mr Dunn’s Newstart Allowance (“NSA”), commencing on 20 March 2006 and ending on 17 May 2006, was correct. This turned on whether Mr Dunn failed to sign a JSP and enter into a PFWA.
LEGISLATIVE FRAMEWORK
NSA payments are made to claimants who are unemployed and are looking for work. It allows Centrelink beneficiaries to participate in activities designed to increase their chances of finding work.
Section 593 of the Social Security Act 1991 (“the Act”) provides that in order to be qualified for NSA a person must satisfy the activity test, that is, they must be actively seeking and be willing to undertake work. [s 601]
Section 604 of the Act authorises Centrelink to require recipients to enter into Newstart Activity Agreements (“NAA”) by issuing a notice to the person advising them of the requirement and the date and time for negotiating an agreement. Section 605 of the Act sets out that the person in receipt of NSA may be required to enter into a NAA (or another such agreement instead of an existing one).
A PFWA is an activity agreement for the purposes of the Act and the Social Security (Administration) Act 1999. PFWAs are designed to ensure that job seekers understand that they must meet their obligations to actively job search and participate in a range of additional activities in return for receiving unemployment payments. Generally speaking, all job seekers aged under 50 who are receiving NSA and are subject to the activity test are required to enter into a PFWA.
An agreement can contain a range of activities [s 606(1)]. However, any terms in the agreement must be approved by the Secretary [s 606(2)]. In considering whether to approve the terms of an agreement, the Secretary has to have regard to the person’s capacity to comply with the agreement [s 606(3) & (4)].
Where a NSA recipient fails to negotiate a NAA agreement, including where there is a failure to agree to the terms of the proposed agreement, and the Secretary is satisfied that the person unreasonably delayed entering into an agreement, a notice can be given to the recipient that they have failed to enter the agreement. After giving such a notice, the person is taken to have failed to enter the agreement [s 607]. Such failure makes NSA not payable and also constitutes an activity test breach [s 625(1)].
An activity test breach results in an activity test breach rate reduction period being applied to the recipient’s payment of NSA [s 625(1A)]. The activity test breach rate reduction period is 26 weeks [s 644AA]. For a first breach, the basic maximum payment of NSA is reduced by 18% throughout the period [s 644AE].
In general, in order to negotiate a NAA, a NSA recipient is referred to a Job Network provider. Job Network services are provided nationally by a network of organisations dedicated to helping job seekers find and keep a job. One of these is Mission Australia.
CONSIDERATION OF EVIDENCE
Mr Dunn has received unemployment benefits since 1993. His last work was as a casual cleaner in 1998. His situation had been managed by Centrelink - and its service provider Mission Australia Employment Services (“MA”) - at Fairfield, but he was transferred to the Cabramatta office.
On 1 November 2005 Mr Dunn was sent a letter informing him that he was to attend an interview with MA on 14 November 2005 at the Cabramatta office. The letter contained the following:
During this interview you may also be required to enter a Preparing for Work Agreement which is a Newstart Activity Agreement under the Social Security Act 1991. Your Job Search plan forms part of your Preparing for Work Agreement.
Under the Social Security Act 1991 if you do attend the interview but fail to negotiate a Preparing for Work Agreement, your payment may be stopped or reduced for a period of time.
Mr Dunn said that when he attended on that day he was cross about the transfer to Cabramatta as the change had been made without consultation with him and that that venue was not as convenient as Fairfield. He felt he had been discriminated against as he believed other people were given the option of transferring to Cabramatta or not. He was subsequently transferred back to Fairfield.
Despite what had been written in the letter there was no discussion that day about the PFWA.
There was some further correspondence between Centrelink and Mr Dunn in November and December 2005. On 14 January 2006 Mr Dunn was sent another letter in similar terms to that of 1 November 2005, requiring his attendance at MA Cabramatta on 27 January 2006.
When he attended on that day Mr Dunn said he was presented with a PFWA which included a JSP. He denied any contention by Centrelink that he was asked to ‘negotiate’ the plan as it was presented to him as a fait accompli.
Section 604 of the Act clearly has the effect of empowering the Secretary to impose terms. It is something of a misnomer to suggest that the agreed plan is the product of negotiations.
However, sections 606(3) and (4) of the Act require the Secretary to have regard to the person’s capacity to comply with the agreement in considering whether to approve the terms of an agreement:
606(3) In considering whether to approve the terms of an agreement with a person, the Secretary is to have regard to the person’s capacity to comply with the proposed agreement and the person’s needs.
606(4) In having regard to a person’s capacity to comply with an agreement, the Secretary is to take into account, but is not limited to the following matters:
(a)the person’s education, experience, skills, age, disability, illness, mental and physical condition; and
(b)the state of the local labour market and the transport options available to the person in accessing that market; and
(c)the participation opportunities available to the person; and
(d)the family and caring responsibilities of the person; and
(e)the length of travel time required for compliance with the agreement, by reference to what constitutes unreasonably difficult commuting for the purposes of paragraph 601(2A)(g); and
(f)the financial costs of compliance with the agreement, such as travel costs, and the capacity to pay for such compliance; and
(g)any other matters that the Secretary or the person considers relevant in the circumstances.
The JSP contained the following provisions:
1.From Friday, 27 January 2006 to Thursday 27 July 2006 undertake 4 job search contacts per fortnight and, if applicable, record these job search contacts on my application for payment forms. These job search contacts will include all types of suitable work, including part-time, causal and full time.
2.Check newspapers and apply for suitable jobs from Friday, 27 January 2006 to Thursday, 27 July 2006.
3.Attend interviews with Mission Australia to review job search progress and/or JSP on Friday, 17 February 2006; Wednesday, 8 March 2006; Wednesday, 22 March 2006.
4.Attend all job interviews from Friday, 27 January 2006 to Thursday, 27 July 2006.
5.Commence, fully participate and complete Intensive Support Customised Assistance with Mission Australia by Thursday, 27 July 2006. I will attend fortnightly meetings as requested.
6.Other measures Attend Supported Jobsearch on Wed; Thurs & Fri 2pm – 4pm from Friday, 27 January 2006 to Thursday, 27 July 2006.
7.Other measures Attend all schedule appointments with Mission Australia – Cabramatta from Friday, 27 January 2006 to Thursday, 27 July 2006.
Mr Dunn said that, although the first two terms were ‘silly’, and that his attendance was to be at the less convenient location of Cabramatta, he agreed with all the terms except the one highlighted above. He considered that condition to be too vague because it did not specify when he would have to attend. Mr Dunn said that it left him ‘at their beck and call’ and would make his life difficult to organise. He said the social aspects of his life would be affected. He would be precluded from doing his shopping, meeting with family and friends and going for job interviews.
It was discussed at the hearing that because, at the relevant time, his phone had been cut off, meetings in accordance with the plan would have to be arranged by mail, and he had had experiences in the past when he had not been given adequate notice.
His attention was invited to the letters of 11 November 2005 and 14 January 2006, both of which contained the following:
If you are unable to attend the interview or want to talk about this letter, please call Mission Australia Employment Services on 02 97834900 before the interview. If necessary, another interview time can be made.
Mr Dunn agreed that in the past he had contacted Centrelink when the notice was too short and the appointment had readily been changed.
I do not agree with Mr Dunn that the terms were too vague and that he was at risk of non-compliance because he may not receive sufficient notice. There was ample scope for adjustment of times if inconvenient, as had occurred in the past.
Further, there was no evidence that any of the criteria identified in section 606(4) of the Act would preclude or limit Mr Dunn’s compliance. His evidence was of possible personal inconvenience to his family and social life and shopping. I do not regard these as affecting his ability to comply. He had also contended that his availability for job interviews may be affected if he had to attend MA meetings. For him to suggest he would be criticised by Centrelink for attending a job interview instead, in circumstances where he is a long-term recipient of newstart allowance, is plainly absurd.
Mr Dunn is a beneficiary of the social security system. The legislative scheme places some obligations on recipients if they wish to maintain that benefit. The obligations imposed on Mr Dunn were entirely reasonable and there was no evidence that his ability to comply was compromised.
DECISION
The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ...[sgd]................................
Associate
Date of Hearing 7 December 2006
Date of Decision 29 January 2007
Appearance for Applicant Self-representedAdvocate for the Respondent Mr George Lozynsky of Centrelink, Legal Services
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