Fernandez and Secretary, Department of Family and Community Services
[2005] AATA 430
•13 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 430
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/48
GENERAL ADMINISTRATIVE DIVISION )
Re LIONEL FERNANDEZ Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Dr EK Christie, Member Date13 May 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means Mr Fernandez’s application for review is unsuccessful.
..................[Sgd]........................
EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – activity test breach – whether applicant actively seeking paid work – extent of obligation to seek paid work
Social Security Act 1991 ss 601, 624, 644AA, 644AE, 953
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316; (2002) 70 ALD 1
Marabouti v Department of Employment Education Training and Youth Affairs [1998] FCA 1452; (1998) 53 ALD 585Castleman v Secretary, Department of Social Security (1999) 57 ALD 439
Beitseen and Others v Johnson and Others (1989) 29 IR 336
REASONS FOR DECISION
13 May 2005 Dr EK Christie, Member 1. This is an application by Lionel Fernandez for a review of the decision made by the Social Security Appeals Tribunal (“the SSAT”) on 11 January 2005 to cancel newstart allowance from 12 October 2004 and to impose an 18% activity breach rate reduction for the period 26 October 2004 to 25 April 2005.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1] and the various exhibits lodged by the parties.
3. The applicant represented himself at the hearing. The respondent was represented by Ms S Oliver, a Departmental Advocate.
Issues Before The Tribunal
4. The only issues for the Tribunal to determine were:
(i)whether Mr Fernandez’s newstart allowance was correctly cancelled and, if so,
(ii)whether an activity test breach rate reduction period was properly imposed.
Factual Evidence
5. Mr Fernandez is now aged 57. He migrated to Australia in 1987. He is an electrical mechanic by trade having acquired that qualification as an apprentice in India whilst serving in the Sri Lankan Navy. He qualified as an electrician on completion of his apprenticeship in 1971. As he had not undertaken an apprenticeship in Australia, he had been unable to acquire practical experience in the installation field. As a consequence, the scope of his overseas apprenticeship meant that his entire experience was confined to electrical maintenance. On becoming licensed in Melbourne, his work experience as an electrician has primarily been in the maintenance area in hospitals.
6. On the basis of the evidence before it, the SSAT made the following findings of fact:
“(i)Mr Fernandez was in receipt of newstart allowance when he signed an activity agreement on 5 October 2004, requiring him to seek all types of suitable work.
(ii)On 12 October 2004 Mr Fernandez advised Centrelink that he was not prepared to look for work outside the field of electrical mechanics.” (T2, Folios 5,6)
7. In response to these findings of fact by the SSAT, Mr Fernandez stated that he agreed that the first finding was correct.
8. However, with respect to the second finding, he had provided the respondent with a written submission stating the reasons for his non-compliance (13 October 2004, T11, Folios 39, 40). These reasons related to the meaning of the term “all types of suitable work” contained in the agreement and his view that it be amended to “suitable work”: Mr Fernandez’s position was that “suitable paid work” should be categorised as –
“Any work originated taking electrical mechanic as the basis preferably in the maintenance area. If an employer is not prepared to accept me as an electrical mechanic, I am prepared to stay unemployed. Then I told ‘I still maintain it’. And that ‘I should be able to convince an employer why I apply for a particular job’. This can only be done to my satisfaction if I look for work as an electrical mechanic.” (T10, Folios 39,40)
9. It was Mr Fernandez’s position that, if he adhered to the term in the agreement “all types of suitable work”, he may have to set aside his license as an electrical mechanic. This was not his wish. Moreover, he raised the scenario that if he were to work as a “labourer”, an employer may try to get him to undertake electrician’s work – but then only pay him labourer’s wages. In such a scenario, Mr Fernandez stated that by entrusting his employment to all types of “suitable work”, he could find himself engaged in “unsuitable work”.
The Tribunal’s Decision-Making Process
10. The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions is available] on the material before the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68]. The Tribunal’s role is to ensure that the “correct decision” has been made in Mr Fernandez’s case.
11. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326. In this application for review, the Tribunal considers all the evidence and information before the Tribunal at the date of the hearing.
Statutory Requirements and Case Law
12. The relevant provisions of the Social Security Act 1991 (“the Act”) that must be satisfied are set out in section 953 and section 601.
13. Except in certain instances not relevant to this appeal, a person must satisfy the activity test in order to be qualified for newstart allowance: section 953 of the Act.
14. Section 601 contains the following requirements:
601.(1) Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a) actively seeking; and
(b) willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.
…..
601.(2A) Subject to subsections (2AA) and (2AB), for the purposes of subsection (1) and subparagraph (2)(a)(i), particular paid work is unsuitable for a person if and only if, in the Secretary's opinion:
(a)the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer; or
(b)it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or
(c)performing the work in the conditions in which the work would be performed would constitute a risk to health or safety and would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or
(d) the work would involve the person being self-employed; or
(e)the work would be covered by an industrial award but the employer would only employ the person if the person agreed to become a party to an agreement reducing or abolishing rights that the award confers on employees; or
(f)the work would not be covered by an industrial award and the remuneration for the work would be lower than the minimum applicable rate of remuneration for comparable work that is covered by an industrial award; or
(g)commuting between the person's home and the place of work would be unreasonably difficult; or
(h) the work would require enlistment in the Defence Force or the Reserves; or
(i)the work requires the person to move from a home in a place to a home in another place; or
(j) for any other reason, the work is unsuitable for the person.
…..
601.(4) A person also satisfies the activity test in respect of a period if, throughout the period, the person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement between the Secretary and the person.
Note: See subsection (6) on taking reasonable steps.
601.(5) If a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).”
601.(6) For the purposes of this section, a person takes reasonable steps to comply with a notice under subsection (1A), with a requirement of the Secretary under subsection (2), or with the terms of a Newstart Activity Agreement (as the case requires) unless the person has failed so to comply and:
(a)the main reason for failing to comply involved a matter that was within the person's control; or
(b)the circumstances that prevented the person from complying were reasonably foreseeable by the person.
History
S.601(6) inserted by Act No. 161, 1994, by s.8 as set out in Schedule 6”
15. The Federal Court has considered the meaning of the term “suitable work” on a number of occasions. Their analysis and interpretation of the meaning of this term has been consistent – as the following cases demonstrate:
(a)Marabouti v Department of Employment Education Training and Youth Affairs [1998] FCA 1452, is a case involving a person who refused an offer of a position (a cook) on the basis that he possessed higher skills, being qualified at a higher grade of cook. In his analysis Lindgren J stated:
“As noted earlier, when one reads the ‘any other reason’ ground in …. [the equivalent of subsection 601(2A)] in conjunction with the other grounds, it is apparent that it is not open to a person to refuse a job offer simply because he or she has more than the particular skills, experience or qualifications that are needed to perform the work. It would perhaps be rare that a person would have no more and no less than the needed level of skills, experience and qualifications for a job. Although, a question of degree may ultimately be raised, in the present case it was open to the AAT to conclude that the position offered was suitable for Mr Marabouti. One seemingly relevant consideration to which the AAT might have referred was that Mr Marabouti had been unemployed for some five years before the offer was made and had unsuccessfully applied for approximately forty other positions – a consideration suggesting that, whatever Mr Marabouti’s qualifications, he could not reasonably be ‘overly selective’.”;
(b)In Castleman v Secretary, Department of Social Security (1999) 57 ALD 439 at 443, in her analysis of the phrases in the Social Security Act dealing (i) with whether a person was “actively seeking paid work” and (ii) the obligations on a social security applicant to seek paid work, Branson J stated:
“[19] The requirements of s 601(1)(a) is that the person satisfy the secretary that he or she is ‘actively seeking’ paid work. In this context the adverb ‘actively’ imports a requirement of active effort as opposed to indolence or procrastination. What the person is required to make an active effort about is the seeking of paid work which is not unsuitable for him or her to undertake – not the seeking of any particular class of such work, nor the seeking of any particular mix of such work.
[20] If a person were to so limit the categories of work which he or she sought that, although the work being sought was not unsuitable for him or her to undertake, the chance of the work being obtained was low, the secretary (or as the case may be, the tribunal) might not be satisfied that the person was genuinely seeking paid work. Alternatively, were the person to restrict in a marked way the categories of work which he or she sought, the secretary (or as the case may be, the tribunal) might not be satisfied that his or her search for paid work was an active search because of the limited demands made on the person’s time by the search actually being undertaken.”
Consideration of the Issues
16. The evidence and information before the Tribunal enables the Tribunal to make the following findings of fact:
(a)that Mr Fernandez was only willing to take up work, at any time, as a maintenance electrician. It was Mr Fernandez’s view that suitable work opportunities for him arose only in the area of electrical maintenance work;
(b)that apart from one day undertaking electrical work in a hospital (14 January 2004), Mr Fernandez has not worked since October 1999 in any capacity;
(c)that over the period February 1998 to October 1999, he had found casual work in electrical maintenance on 7 occasions in which he had earned a total of $4,261 (Exhibit 3);
(d)that since October 1999, Mr Fernandez had not sought any job vacancies or employment opportunities that were not in the category of electrical maintenance work;
(e)that from October 1999 onwards, there was only once vacancy for electrical maintenance that had arisen (in January 2004 for 1 day);
(f)that Mr Fernandez’s concluded view was that he would only undertake work opportunities involving electrical maintenance work and that he would not consider any other forms of work that were not in the electrical maintenance area; and
(g)that on 13 September 2004, on a different issue relating to his newstart allowance, the SSAT made the following cautionary note in its decision:
“17.It may be that the newstart activity agreement signed does not contain specific terms or clarifications relating to suitable paid work that Centrelink considers necessary. If this is so, then it is open [to] Centrelink to negotiate a new agreement with Mr Fernandez. In this regard, as indicated above, the Tribunal made it clear to Mr Fernandez that, consistent with the relevant provisions of the social security law, he must be prepared to look for work beyond that in the electrical trade.” (SSAT Appeal Number B28066)
17. The Tribunal considers these findings of fact against the legal principles contained in the decisions in Marabouti’s case and Castleman’s case. Both these decisions are Federal Court cases. The Federal Court is a superior court to the Administrative Appeals Tribunal. Consequently, these legal principles are binding on the Administrative Appeals Tribunal and must be adhered to - otherwise an error of law will arise.
18. Accordingly, the Tribunal makes the following conclusions:
(a)that it is not open to Mr Fernandez to refuse a job simply because he has more than the necessary skills, experience or qualifications that are needed to perform the work (Marabouti’s case);
(b)that in the period Mr Fernandez has been unemployed since 1999, he has worked one day only and has not applied for any other positions outside the area of electrical maintenance – a consideration that suggests to the Tribunal that he has been “overly selective” (Marabouti’s case);
(c)that Mr Fernandez has not been “actively seeking work” which is not unsuitable for him to undertake as he has restricted his efforts to a particular class of work – electrical maintenance (Castleman’s case);
(d)that by limiting the categories of work which he sought in a marked way to electrical maintenance only, the Tribunal cannot be satisfied that Mr Fernandez’s search for paid work was an active search because of the limited demands made on his time by the search actually being undertaken (Castleman’s case);
(e)that by limiting the category of work which he sought, the chance of obtaining such work was low and the Tribunal is not satisfied that Mr Fernandez was genuinely seeking paid work (Castleman’s case); and
(f)that the Tribunal considers the scenario described by Mr Fernandez in his oral evidence that paid work may prove to be unsuitable for him as mere speculation.
19. For all of the above reasons, the Tribunal concludes that over the relevant period Mr Fernandez was not actively seeking and willing to undertake paid work. That is, he had failed to fulfil his obligations under the Social Security Act as a recipient of newstart allowance.
20. Accordingly, the Tribunal is satisfied that Mr Fernandez failed the activity test under subsection 601(1) on 12 October 2004. It follows that under section 624, newstart allowance was not payable to Mr Fernandez, and so was correctly cancelled. Further, under sections 644AA and 644AE, an activity test breach rate reduction of 18% was correctly applied for 26 weeks.
21. The Tribunal affirms the decision under review.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Camille Banks
AssociateDate/s of Hearing 27 April 2005
Date of Decision 13 May 2005
The Applicant represented himself
For the Respondent Ms S Oliver, Departmental Advocate
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