Ferguson; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1009

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/399

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And EVELYN FERGUSON

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member  

Date12 January 2007

PlacePort Macquarie

Decision The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance - cancellation of newstart allowance payments - reducing employment prospects by relocating residence – decision under review affirmed

Social Security Act 1991 s634

Re Secretary of the Department of Family and Community Services and Pitkin (2005) 87 ALD 119

Re Secretary, Department of Employment and Workplace Relations and Trajcevski (2005) 87 ALD 138

Re Borowiecki and Secretary, Department of Social Security (1991) 22 ALD 797

REASONS FOR DECISION

12 January 2007 Ms N Isenberg, Senior Member 

1.      A person who moves to a new place of residence while receiving newstart allowance, which is a Centrelink payment for the unemployed, faces the possibility of losing their entitlement for 26 weeks, if they have reduced their employment prospects by the move.

2.      In November 2005, Mrs Ferguson moved from Woy Woy to Port Macquarie. A delegate of the Applicant decided that in the circumstances of the move, the 26 week non-payment period should be applied to Mrs Ferguson’s payments.  The Social Security Appeals Tribunal (“the SSAT”) agreed that Mrs Ferguson had reduced her employment prospects by the move but found she had “sufficient reason” for the move.  The Applicant believes that decision was wrong. 

3.      What I have to decide is:

§  whether Mrs Ferguson did in fact reduce her employment prospects by moving to a new place of residence; and

§  if she did so, was there a “sufficient reason” as defined in the legislation for her move.  Where there is “sufficient reason”, the 26 week penalty is not applied.

4. The relevant legislation is contained in section 634 of the Social Security Act 1991  which states:

“…, if, in the opinion of the Secretary, a person has reduced her or her employment prospects by moving to a new place of residence without sufficient reason, a newstart allowance is not payable to the person for 26 weeks….”

BACKGROUND

5.      Mrs Ferguson is aged 58.  She has worked all her adult life, with the exception of a couple of months “here and there” between jobs.  For many years she has worked in the hospitality industry on a casual basis.  She ceased work in August 2005 when the takeaway outlet in which she worked was sold and she was not offered employment by the new owners.  Mrs Ferguson and her husband moved from Woy Woy to Port Macquarie where her sisters, parents and other relatives lived.   

DID MRS FERGUSON REDUCE HER EMPLOYMENT PROSECTS BY MOVING?

6.      Mrs Ferguson said that before moving to Port Macquarie she worked part-time for 6-8 hours per week at a take-away seafood store.  Previously, before there were difficulties with the sale of the business, she had worked 15-20 hours.  Sometimes she worked split shifts.  Her husband has a severe back condition and requires assistance with drying his feet, putting on his socks and shoes and generally getting himself ready each morning. He also has some general restrictions in dexterity.   Mrs Ferguson said that because of these caring responsibilities she could not undertake employment that would require her to travel long distances or leave home very early and is therefore limited in the hours she can work. She had always worked within the Woy Woy/Kincumber/Ettalong area (“the peninsula”).  She did not consider jobs in, for example, Hornsby, because she does not know that area at all.

7.      Before leaving Woy Woy she made no enquiries as to jobs in the Port Macquarie area.  She said, and I accept, that she knew it to be a tourist destination and, as she had worked in hospitality for over 20 years, she did not think she would have difficulty finding work.  At the time they moved she did not know newstart allowance existed so was unaware of any potential entitlement, beyond her husband’s disability support pension. 

8.      She started looking for work straight away and in October 2006 she secured a casual job as a housemaid at a motel, working about 3-4 hours a day, averaging about 12 hours per week.  She obtained that job through “cold canvassing”.

9.      The Applicant contended that the purpose of the legislation is to discourage newstart allowance recipients from limiting their employment prospects by relocating to an area where the likelihood of finding work is significantly lower than in their previous location [my emphasis]. 

10.     The authorised review officer (“ARO”) in coming to her decision relied on source material not available to me, but about which there was no dispute: that the unemployment rate in Woy Woy was 4.5%, while the unemployment rate in Port Macquarie was 7.4%. 

11.     The process undertaken by Centrelink to determine reduction in employment prospects was outlined to me.  Centrelink uses the program “REMOVE” (“Reduced Employment Moving Test”) to calculate the relative unemployment rate for the locations in question.  If there is difference greater than 2% in the relevant unemployment rates then Centrelink invites the newstart allowance applicant to complete a “customer declaration” indicating the reasons for moving. 

12.     It seems to me that a difference of 2% in unemployment rates is taken by Centrelink to be prima facie evidence of reduced employability in the new location, in that this difference triggers an examination of whether the newstart allowance applicant has “sufficient reason” for moving to such an area.  The effect is that a 2% difference in unemployment rates appears to be Centrelink’s benchmark in deciding if there are reduced employment prospects.  This approach suggests to me some rigidity and it will only be if the person can come within the “sufficient reason” provisions that the 2% difference will be overlooked.  This focus on the percentage difference in the general unemployment statistics does not, in my view, adequately address the true position in relation to whether Mrs Ferguson’s employment prospects were in fact reduced by the move to Port Macquarie. 

13.     The ARO also noted that Woy Woy is regarded as being in the Sydney metropolitan labour force area with a labour force size of just over 2.2 million, while the size of the Port Macquarie labour force was considerably smaller, at 16,037.  The ARO also noted that the Australian Jobsearch Database provided by the Department of Employment and Workplace Relations had 301 job vacancies listed in the Central Coast area, compared to 44 listings in the Hastings area.  The Central Coast had 76 jobs listed in the food, hospitality and tourism industries while 5 jobs were listed in the Hastings area.  This evidence was not before me either, presumably because the SSAT had found that Mrs Ferguson’s employment prospects were reduced.

14.     I was referred by the Respondent to ReSecretary of the Department of Family and Community Services and Pitkin (2005) 87 ALD 119 at 123 as an example of a decision of this Tribunal to the effect that general unemployment statistics do not provide a reasonable measure of the employment prospects of a person and are likely to conceal a wide variety of demographic and labour market factors:

“In order to determine a person’s employment prospects, plainly it is necessary to carefully consider factors including but not limited to the person’s work capacity and employment attributes, including their skills, training, qualifications, experience and capabilities, and the classes of work that may be unsuitable for them, in relation to the characteristics of the relevant labour market or salient factors operating upon it.”

15.        In that case the Tribunal was critical of the absence of evidence provided by Centrelink.  Appropriate evidence which was suggested at 130 was:

“

a)the number of job seekers competing for paid work that was suitable for Mr Pitkin, for example detailed Centrelink statistics concerning job seekers at or about that time,

b)the availability of paid work that was not unsuitable for Mr Pitkin, for example Job Network data concerning suitable vacant positions or data concerning suitable positions publicly advertised at or about that time, and

c)material concerning the relative characteristics of the labour markets and relevant demographic factors in each place the may have affected Mr Pitkin’s employment prospects in either place.”

16.     No material of that nature was provided in the present matter.  I note that in Pitkin, where the state of the evidence in relation to the comparative labour markets was described as “at its highest, opaque” there was more available evidence than in the present matter.

17.     I agree with the submission on behalf of Mrs Ferguson that I need to take into account her individual attributes together with the suitable job vacancies in each respective area and the number of job-seekers competing for those particular jobs.  In ReSecretary, Department of Employment and Workplace Relations and Trajcevski (2005) 87 ALD 138 at 144 the Tribunal considered Mr Trajcevski’s individual attributes and barriers to his employment when considering his employment prospects both in the area in which he originally resided and then in the area to which he moved:

“The respondent belongs to a specific group, of long-term unemployed men who are over 50, unskilled, and in addition have language barriers to employment.  These are people with very significant barriers to employment wherever they reside, and the statistic quoted does not look at specific groups.  The Tribunal considers that the data is perhaps applicable to the average job seeker without barriers to employment.  The respondent is not in this category.”

18.     Whether a person has reduced employment prospects is a question of fact in each case: Re Borowiecki andSecretary, Department of Social Security (1991) 22 ALD 797. The material relied upon by the Applicant is generic information that puts Mrs Ferguson in the same position as all job-seekers of all ages, responsibilities and experience: Mrs Ferguson is a 58 year old woman who only had part-time employment in the peninsula area until August 2005, has no trade or professional qualifications and who is restricted in the jobs she can accept because of her caring responsibilities for her husband. 

19.     Another serious deficiency in the comparison of employment prospects is in Centrelink’s inclusion of the peninsula area in the greater Sydney metropolitan area on the basis of an internal rule that a job in that wider area may be accessible with 90 minutes travel.  To suggest that Mrs Ferguson, who has no familiarity with metropolitan Sydney other than the peninsula area, should travel 90 minutes each way in order to undertake possibly only 3 hours work per day, is clearly unreasonable.  Even more ridiculous is the suggestion she should travel for so long, each way, to work a split shift. 

20.     The Applicant has not established that a person with Mrs Ferguson’s particular attributes and barriers has lower employment prospects in Port Macquarie than in the Woy Woy area. 

21.     Having come to that view it was not necessary for me to consider if there was “sufficient reason” for Mrs Ferguson’s move.

DECISION

22.     The decision of the Social Security Appeals Tribunal is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member  

Signed:         ……….[Emily Gadsby]……….
   Associate

Date/s of Hearing  20 December 2006
Date of Decision  12 January 2007
Solicitor for the Applicant          Mr G Richardson, Centrelink Legal Services
Solicitor for the Respondent     Ms D Anagnos, Welfare Rights Centre