HORST KRONEN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 265
•22 April 2009
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos: 2008/3718-3720
General Administrative Division ) 2008/5384
Re: Horst Kronen
Applicant
And: Secretary, Department of Education, Employment and Workplace Relations
Respondent
CORRIGENDUM
TRIBUNAL: Senior Member L Hastwell
DATE: 22 April 2009
PLACE: Adelaide
In the decision of the Tribunal in this matter handed down on 22 April 2009, paragraph 28 should read as follows:
“28. He acknowledges that he failed to attend interviews with Maxima on all the dates on which participation failures are alleged, namely 8 February 2008, 29 February 2008, 14 March 2008, 1 May and 6 June 2008.”
..........................................................
L HASTWELL
(Senior Member)
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 265
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2008/3718-20, 2008/5384
GENERAL ADMINISTRATIVE DIVISION ) Re HORST KRONEN Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date22 April 2009
PlaceAdelaide
Decision The Tribunal affirms the decisions under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – Newstart participation failures – failure to attend interviews – failure to sign activity agreement in terms required by employment service provider – imposition of non-payment periods – cancellation of NSA – reasonable excuse considered – decision affirmed
Social Security Act 1991 ss 593, 601, 605, 606, 624, 629
Social Security (Administration) Act 1999 s 80Social Security (Reasonable Excuse) (DEWR) Determination 2006 s 4
Re Bartlett and Secretary, Department of Social Security (1994) 33 ALD 661
REASONS FOR DECISION
22 April 2009 Senior Member L Hastwell 1. Horst Kronen was a recipient of Newstart Allowance (NSA) from March 2005.
2. On 2 April 2007, he was referred to Maxima Joblink (Maxima), an employment service provider, for intensive support with looking for work and training opportunities. At the time, Mr Kronen was 53 years of age with a history of significant periods of unemployment.
3. Mr Kronen signed an activity agreement with Maxima on 10 May 2007. That agreement expired on 26 September 2007.
4. Mr Kronen then fell into a dispute with Maxima about signing another agreement as he insisted that certain terms be included in the new agreement, which he considered would “protect him” from Maxima’s conduct. He also objected to some terms that Maxima wanted to include in the agreement.
5. Over the following months Mr Kronen failed to attend a number of pre-arranged interviews with Maxima, despite having notice of these interviews. He was aware of the interviews and chose not to attend.
6. He was found to have committed a number of NSA participation failures and non-payment periods were imposed. A decision was also made to cancel his NSA altogether on the basis that he was not satisfying the eligibility requirements for the allowance.
7. Mr Kronen has applied to this Tribunal for review of a number of decisions of the Social Security Appeals Tribunal (the SSAT).
8. The first decision was made on 24 July 2008, in which the SSAT:
·Affirmed the decision of an Authorised Review Officer (ARO) of 9 April 2008 that Mr Kronen had committed, without reasonable excuse, NSA participation failures on 8 February 2008 and 29 February 2008. In that same decision they set aside a decision by the ARO that a third participation failure had occurred on 7 March 2008.
·Affirmed a decision of an ARO made on 19 May 2008 that Mr Kronen had committed a third participation failure on 14 March 2008 and that as it was the third failure in 12 months, an eight week non-payment period should be applied to Mr Kronen’s payments. That period was to run from 11 April 2008 until 5 June 2008.
·Affirmed a second decision made by the same ARO on 19 May 2008 that Mr Kronen had committed a further participation failure on 1 May 2008 and that a further eight week non-payment period should be applied to his NSA from 9 May 2008 until 3 July 2008.
9. The second decision under review is a decision made by the SSAT on 24 July 2008 which affirmed the decision of an Authorised Review Officer on 27 June 2008 to cancel Mr Kronen’s NSA from 6 June 2008.
10. The third decision under review is the SSAT decision of 7 November 2008, which affirmed the decision of an ARO made on 21 July 2008 that Mr Kronen had committed another NSA participation failure without reasonable excuse on 6 June 2008 and as a result, an eight week non-payment period was applied.
relevant legislation
11. The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
12. Section 593 of the Act sets out the basic qualifications for NSA. The relevant provisions in this case are as follows:
“593 Qualification for newstart allowance
(1)Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed;
…
(b)in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:
(i) satisfies the activity test;
…
(c)if subsection 605(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 605(1) or (2) 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
(e)if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and
(f)while the agreement is in force, the person satisfies the Secretary that the person is complying with the terms of the agreement; and
(g) throughout the period the person:
(i)subject to subsection (2B), is at least 21 years of age and has not reached the pension age; and
(ii)is an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7); and
(iii)the person was not in receipt of a youth allowance during the period.”
13. The activity test is defined in s 601 of the Act in the following terms:
“601 Activity test
(1)Subject to subsections (1A) and (5), 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.”
14. A person may also satisfy the activity test if they comply with the terms of a NSA activity agreement:
“601(4)A person also satisfies the activity test in respect of a period if, throughout the period, the person is complying with the terms of a Newstart Activity Agreement between the Secretary and the person.”
15. Section 601(5) provides that if a person fails to comply with the terms of such an agreement, then they cannot be taken to satisfy the activity test in respect of the period regardless of any compliance with s 601(1) of the Act.
16. Section 605 of the Act provides that the Secretary may require a person who is not a party to a NSA activity agreement to enter into such an agreement if they are receiving or making a claim for NSA. The relevant provisions are as follows:
“605 Newstart Activity Agreements—requirement
(1)Subject to this section, the Secretary may require a person who is not a party to a Newstart Activity Agreement to enter into such an agreement if:
(a)the person is receiving, or has made a claim for, a newstart allowance; or
(b)the Department is contacted by or on behalf of the person in relation to a claim for a newstart allowance.
(2)Subject to this section, the Secretary may require a person who has entered into a Newstart Activity Agreement to enter into another such agreement instead of the existing one.
…
(3)The Secretary is to give a person who is required to enter into a Newstart Activity Agreement notice of:
(a)the requirement; and
(b)the places and times at which the agreement is to be negotiated.
(4)A Newstart Activity Agreement is a written agreement in a form approved by the Secretary. The agreement is between the person and the Secretary.
…”
17. Section 606 of the Act deals with the terms that can be put in a NSA activity agreement. Such an agreement can require a person to undertake activities that the Secretary regards as suitable for the person. There are certain limitations on the provisions that can be put in those agreements, but those issues do not arise in this case.
18. In certain circumstances, NSA is not payable if the person fails to attend an interview or fails to enter into a NSA activity agreement.
19. Section 624 of the Act deals with NSA participation failures. Section 624(1) provides as follows:
“624 Newstart participation failures
(1) A person commits a newstart participation failure if the person:
(a) fails to comply with a requirement:
(i)that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and
(ii) that was reasonable; and
(iii)the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or
(b) fails to satisfy the activity test; or
(c)fails to comply with a requirement to enter into a Newstart Activity Agreement; or
(d)fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; or
(e) fails to attend a job interview;
…”
20. Section 624(2) states that a person may be found to have reasonable cause for a failure to comply with a requirement that otherwise meets the criteria under s 624 of the Act, such that it is not a participation failure:
“624(2)Despite subsection (1), a failure of a kind referred to in that subsection is not a newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure.”
21. Section 624(2A) of the Act provides that the Secretary can, by legislative instrument, determine the matters that the Secretary must take into account in deciding whether a person had a reasonable excuse for committing a NSA participation failure as set out in s 624(2).
22. Section 624(2B) of the Act provides as follows:
“624(2B)To avoid doubt, a determination under subsection (2A) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing the newstart participation failure referred to in subsection (1).”
23. The legislative instrument in question is the Social Security (Reasonable Excuse) (DEWR) Determination 2006. The relevant matters described in s 4 are as follows:
“4 Matters to be taken into account in determining if a person had a reasonable excuse
…
(2) The matters are:
(a)the fact that the person is living in a non-permanent location on the streets or is using emergency accommodation or refuge at the time that the failure or refusal occurred; and
(b)the literacy and language skills of the person, if the person’s lack of such skills is significant; and
Example for paragraph (b)
If the person is unable to comprehend a requirement or an instruction, despite the requirement or instruction being delivered in a form that the person is most likely to comprehend.
(c)any illness, impairment or condition of the person that requires frequent treatment, including any illness that is episodic or unpredictable in nature; and
(d)any cognitive or neurological impairment of the person; and
(e)any psychiatric or psychological impairment or mental illness of the person; and
(f)any drug or alcohol dependency of the person; and
(g)any unforeseen family or caring responsibilities of the person; and
(h)the death of an immediate family member; and
(i)If:
(i)the person has been in gaol; and
(ii)the period that the person spent in gaol exceeded 14 days; and
(iii)the person has been released; and
(iv)the person was released not more than 28 days before the person’s failure to comply with the Act;
the person’s release from gaol.
(3)Subsections (1) and (2) do not apply unless the Secretary is satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement or the provision of the Act to which the failure or refusal relates.”
24. Section 629(1) of the Act allows for the imposition of an eight week non-payment period where a person commits a participation failure and has committed earlier failures on two or more occasions during the period of the 12 months preceding that latest failure. Section 629 provides as follows:
“629 Allowance not payable because of repeated or more serious failure
(1)A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:
(a)commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure; or
(b)is unemployed due, either directly or indirectly, to a voluntary act of the person; or
(c) is unemployed due to the person’s misconduct as a worker; or
(d)has refused or failed, without reasonable excuse, to accept a suitable offer of employment; or
(e) fails, without reasonable excuse:
(i)to commence, complete or participate in an approved program of work for income support payment that the person is required to undertake; or
(ii) to comply with the conditions of such a program.
(1A)The Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of paragraph (1)(d), a person had a reasonable excuse for refusing or failing to accept a suitable offer of employment.
(1B)To avoid doubt, a determination under subsection (1A) does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of paragraph (1)(d), a person had a reasonable excuse for refusing or failing to accept a suitable offer of employment referred to in that paragraph.
(2)For the purposes of paragraph (1)(a), disregard any earlier failure that is a failure to which subsection 626(1) does not apply because of subsection 626(2).
(3)Subsection (1) does not apply in relation to the repeated failure if the Secretary is for any other reason satisfied that subsection (1) should not apply to the failure.
(4)Paragraph (1)(b) does not apply if the Secretary is satisfied that the person’s voluntary act was reasonable.
(5) Paragraph (1)(e) applies only if:
(a) the person is under 60; and
(b)a determination under paragraph 28(4)(b) is in force in relation to the person.”
25. There is a provision in the Administration Act which provides for the cancellation of a Social Security payment where the Secretary is satisfied that a person is not, or was not, qualified for the payment. Section 80 of the Administration Act provides as follows:
“80 Cancellation or suspension determination
(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.
…”
issues
26. The issues for the Tribunal to determine are:
·whether Mr Kronen committed NSA participation failures and if so, how many, on what dates and within which period;
·if he did commit NSA participation failures, whether he had a reasonable excuse for any or all of those failures;
·whether the two eight week non-payment periods should be imposed in the circumstances; and
·whether there was a basis for cancelling his NSA.
agreed material facts
27. Mr Kronen represented himself before the Tribunal and provided the Tribunal with some written material including his Outline of Argument and a Timeline of Events (Exhibit A1).
28. He acknowledges that he failed to attend interviews with Maxima on all the dates on which participation failures are alleged, namely 8 February 2007, 29 February 2007, 14 March 2007, 1 May and 6 June 2007.
29. He acknowledges that he received written notification of each meeting from the respondent (the Department) in accordance with their legislative obligation to provide such notice.
30. He told the Tribunal that he was aware of the requirement that he attend these meetings and that he enter into an activity agreement once the old agreement had expired.
31. Mr Kronen does not allege that he was suffering from any illness or mental or physical impairment that would have prevented him attending the meetings in question or from entering into an agreement.
32. Mr Kronen asks the Tribunal to find that he had a reasonable excuse for his refusal to co-operate with Maxima.
Mr Kronen’s explanation for his failure to attend the meetings
33. Mr Kronen did not dispute the contents of the T documents.
34. He told the Tribunal that his non co-operation with Maxima was largely because he took the view that until such time as Maxima was willing to sign an agreement that included the specially crafted clauses that he had prepared, there was no point in him attending these meetings.
35. He told the Tribunal of his perceived difficulties in his dealings with Maxima. He referred to correspondence that he had sent to Maxima in July 2007 (Exhibits A2 and A3) that contained a litany of complaints about his dealings with Maxima that went back to early 2007. He told the Tribunal that he had become suspicious of his dealings with them prior to the events of October 2007 onwards.
36. He became particularly aggrieved at the assertion by one of the Maxima employment consultants in August and September 2007 that he was exhibiting a pattern of work avoidance. He considered that there was no evidence to support such a contention and complained that they would not provide him with the evidence upon which they had based this assessment.
37. He was also unable to accept as reasonable that he be subject to a “work-for-the-dole” clause in an activity agreement as he believed that, because of his age, he was exempt from such a requirement.
38. When his prior activity agreement was due to expire in September 2007, discussions commenced with a view to him entering into a new agreement. It was at this point that relations between Mr Kronen and Maxima worsened.
39. At a meeting on 9 October 2007, he presented an activity agreement for signing by Maxima which included some specific clauses that he insisted must be included before he would sign it.
40. The three clauses that he had drafted were as follows:
“1.Maxima Joblink will make every reasonable effort to assist Horst Kronen with the search for suitable employment. To this end, Maxima Joblink will supply support services as required, will supply good, well considered advice and guidance as required, and will refrain from attempting to cause Horst Kronen any unnecessary aggravation, frustration, monetary loss and/or other form of unnecessary inconvenience in its (and its employees’ and/or representatives’) interactions with him.
2.Maxima Joblink agrees to pay to Horst Kronen an amount equivalent to 8 weeks’ loss of Newstart benefits (currently $1,697.20), or any greater amount set by a court or tribunal of suitable jurisdiction, in the event that Maxima Joblink, or its employees and/or representatives, furnish incorrect, incomplete, false and/or misleading information to any third party – including, but not limited to, that which recommends or may result in a participation failure, serious failure or other similar ‘breach’, or adverse and/or defamatory finding or assessment, being wrongly or improperly listed (no matter how briefly) against Horst Kronen.
(a)This clause applies to information, reports, assessments, etc. that have been furnished to any third party since 1 January 2007, or that will be so furnished in the future.
(b)The amount – currently $1,697.20 – is payable in each individual instance where incorrect, incomplete, false and/or misleading information has been generated and/or supplied to a third party.
3.Periodic meetings between Maxima Joblink (or its employees and/or representatives) and Horst Kronen, which are scheduled at the discretion of Maxima Joblink (or its employees and/or representatives), shall be conducted in a professional, efficient and productive manner where the agenda for each meeting is to be made known to Horst Kronen at least 7 days before any such meeting. Failure to provide satisfactory reasons for any such meeting, or failure to provide advance notice of its full agenda, will allow for the cancellation of the proposed meeting.”
41. He also presented a written proposal as to “Negotiation Procedures” if Maxima would not accept his terms. This included referral to an independent panel if any terms could not be agreed.
42. The agreement as presented by Mr Kronen was not counter-signed by Maxima as it was not acceptable to them. It did not contain the job search requirement they considered appropriate for Mr Kronen, nor would they accept his contractual terms and, in particular, his liquidated damages clause.
43. On 25 October 2007, Mr Kronen presented another written complaint to Centrelink (Exhibit A12) which include complaints of Maxima “mishandling” his personal information.
44. Mr Kronen then commenced a pattern of deliberate non-attendance at some of the meetings that he was required to attend.
45. In December 2007 he presented an amended list of contractual obligations that he required in any activity agreement, which included a similar liquidated damages clause (T15). Maxima declined to sign it. He signed his preferred agreement on 14 December 2007 (Exhibit A9).
46. He did not attend meetings that were for the purposes of negotiating a NSA activity agreement.
47. Mr Kronen acknowledges that he was sent an appointment letter before each meeting at which he was required to attend to enter into an activity agreement. He chose not to attend the meetings.
48. Despite his failure to attend these meetings, which were set up specifically for the purpose of negotiating the NSA activity agreement, Mr Kronen would attend his brief Rapid Connect meetings at Maxima.
49. Mr Kronen told the Tribunal that there was no point in him attending any of the meetings which were for the purpose of negotiating an activity agreement as he did not consider that Maxima were prepared to reasonably negotiate with him.
50. He had formed the view that there was no prospect of his requirements being fulfilled, namely that his specific clauses would be included in the activity agreement, and therefore there was no point in his attending. He also expressed the view that Maxima refused to engage with him in a courteous and professional manner.
51. He referred the Tribunal to the “Employment and Related Services Code of Practice” (Exhibit A11). He considered that Maxima had breached that code in the way that they dealt with him.
52. He alleged that Maxima engaged in conduct that he considered did not comply with appropriate standards.
53. Mr Kronen was of the view that, because of his age, he should not be subject to mutual obligation requirements. He had been very put out when he was told that with a pattern of work avoidance he could be required to submit to mutual obligation requirements, despite his age.
54. During this period of repeated refusals to attend interviews, Mr Kronen made complaints to the Department and to the Ombudsman. In a letter received by Mr Kronen on 10 April 2008 from the Deputy State Manager of the Department of Education, Employment and Workplace Relations (DEEWR), it was suggested that he contact the DEEWR line to arrange a new job network member because of the breakdown in his relations with Maxima. Mr Kronen chose not to do so.
55. In a telephone discussion with the ARO, which is reported at T32/227, it was noted that he did not wish to change job network member providers, despite this option being available to him.
56. On 10 April 2008, Mr Kronen entered into an activity agreement with Centrelink (as distinct from his employment service provider) in which he agreed that he would do certain things from 10 April 2008 until 28 August 2008. He signed this activity agreement without insisting on the inclusion of his own clauses.
57. Mr Kronen then failed to attend his next appointment set by Maxima, which was for 1 May 2008. He was provided with written notice of the appointment.
58. He was advised on 13 May 2008 that a NSA participation failure would be applied to his payment and, as this was the third NSA participation failure in 12 months, an eight week non-payment period was applied for the period 9 May 2008 to 3 July 2008.
59. He submits that he did sign agreements that included his preferred clauses and that Maxima refused to sign those agreements. He considered his actions reasonable and Maxima’s actions unreasonable.
60. He claimed that Mr Wayne Denny from Maxima had talked over him in a loud and aggressive manner and that he found his behaviour offensive and intimidating.
61. He pointed to the letters that he had given to Maxima that were contained in the T documents that set out his objections to attending the meetings.
62. By the time it came to the participation failures that are the subject of this review, Mr Kronen was taking the principled view that there was little point in him attending meetings because he was not going to achieve anything. He felt he was not being listened to and that his time was being wasted.
63. He said that he refused the offer to transfer to another employment service provider because it was the responsibility of the Department to find a new provider for him and it was not his responsibility to go and find someone.
64. Mr Wayne Denny of Maxima gave evidence.
65. He was Mr Kronen’s employment consultant and he acknowledged that negotiations between them had broken down.
66. He told the Tribunal that his assessment of Mr Kronen by September 2007 was that he was not gaining employment and more effort was required. The current job search activities appeared to be getting him nowhere in terms of employment.
67. Mr Denny was of the opinion that reverse marketing, extra job search contacts and attendance at sessions at Maxima that were designed to assist Mr Kronen in getting a job (usually three days a week for 1½ hours a day) would assist him. Mr Kronen took exception at these additional requirements that Mr Denny wanted included in the agreement.
68. He said it took six weeks to negotiate an agreement with Mr Kronen and when he thought it had been achieved, Mr Kronen then produced the three clauses that he wanted included in any activity agreement.
69. He described the course of negotiations over the next few months. He said, for instance, that Mr Kronen was insistent that there be an exception made for the Christmas period such that he not be required to look for work during that period. It is not usual for job seekers to be given such an exemption.
70. He recalled raising the issue of “work-for-the-dole” with Mr Kronen, which he said can be required of anyone up to 59 years of age if there is a demonstrated pattern of work avoidance.
other relevant evidence
71. The Tribunal had regard to the various exhibits that were produced and to the content of the T documents. Mr Kronen provided the Tribunal with a bundle of responses he has received from the Ombudsman and the Department with respect to his various complaints about Maxima. At no stage was there evidence of adverse findings against Maxima.
72. Mr Kronen had lodged numerous complaints against Maxima which varied from his complaints against the alleged assessment of him being a work avoider, to complaints that they limited his use of their computer facilities because they considered he was not using them for job search related activities. The Department proposed the solution that he transfer to another employment service provider and he was given the customer service line to discuss those options. He elected not to take up that option.
73. Mr Kronen’s complaints included allegations that Maxima had displayed an adversarial approach to their dealings with him, filed unfavourable reports against him, caused him financial hardship and damaged his name and reputation. He claimed that information provided by Maxima to the Department was, on occasions, fabricated. His objection to a “work-for-the-dole” requirement being included in an agreement is raised in his correspondence with the Ombudsman.
74. Mr Kronen’s Outline of Argument (Exhibit A1) summarises his various complaints about Maxima. He agrees that none of the matters that might form a reasonable excuse in the Social Security (Reasonable Excuse) (DEWR) Determination 2006 apply to him. Nevertheless, the Tribunal is not confined to that Determination when considering “reasonable excuse”.
75. He submitted that because he had entered into an activity agreement with Centrelink on 10 April 2008, he should not have been subject to a decision to cancel his NSA after that date, despite his failure to attend subsequent meetings at Maxima which were for the purpose of negotiating a detailed NSA activity agreement.
76. It is to be noted that on 3 October 2008, Mr Kronen was assigned to Jobs Statewide as his new job network member.
findings of fact
77. The Tribunal makes the following findings in addition to the facts set out in paragraphs 26 to 31 (supra).
78. Mr Kronen is now 55 years of age.
79. He has been a recipient of NSA since 2005.
80. Mr Kronen has had dealings with Maxima, his employment service provider, since 2005.
81. Mr Kronen was not successful in his attempts to gain employment between 2005 and 2008.
82. Mr Kronen’s activity agreement expired in September 2007 and thereafter he refused to enter into an activity agreement in the terms required by Maxima.
83. The terms of the agreement put forward by Maxima for Mr Kronen to sign from September 2007 onwards were reasonable in the all circumstances. Mr Kronen had not been successful in finding work, despite a lengthy period of unemployment, and it was within the employment consultant’s discretion to require an alteration in the job search activities that would be in his new agreement.
84. The terms that Mr Kronen insisted be included in the activity agreement were not reasonable in the circumstances.
85. Mr Kronen was advised in writing of the time and place of each meeting that he was required to attend with Maxima to negotiate an activity agreement and he deliberately chose not to attend the meetings referred to in paragraph 27 hereof.
86. After each of the dates where he failed to attend the appointments, Centrelink advised him by letter that he had committed a NSA participation failure and he was warned that if he committed three or more such failures in 12 months, he may face an eight week non-payment period.
87. Mr Kronen does not dispute his failure to attend the various meetings with Maxima.
88. He acknowledges that he received written notification of each meeting and he did not attend.
89. After each failure to attend he was advised that a NSA participation failure had been recorded against him.
90. There is no evidence that Maxima breached the Code of Practice for providers of employment related services.
91. There appears to be no factual basis for Mr Kronen’s various complaints against Maxima which were investigated by the Ombudsman and by DEEWR.
consideration and application of the law
92. There is no dispute by Mr Kronen that he had committed NSA participation failures on each occasion alleged by the Department. He acknowledges that he was subject to the activity test and that he was required to enter into a NSA activity agreement. He acknowledges that he was given appropriate notice of the requirement to attend and the places and times at which the agreement was to be negotiated. He deliberately chose not to attend on each and every occasion alleged because of his belief that there was no prospect of an activity agreement being successfully negotiated.
93. He asks the Tribunal to accept that he had a reasonable excuse for the various participation failures and seeks to have those SSAT decisions that were adverse to him set aside.
94. Mr Kronen presents as a difficult person who appeared unable to accept that as a person who is receiving Government benefits there are certain obligatory requirements that can be imposed upon him, regardless of whether he likes them or not. He had an unrealistic view of his own bargaining power in his relationship with his employment service provider.
95. The requirements that the employment service provider sought to impose in this case were reasonable in the circumstances. Mr Kronen’s response was unreasonable. He appeared to have the view that once a person has achieved a certain age, he or she should not be required to actively seek work. There was a flavour of that in the way he dealt with the matter both before the Tribunal and in his dealings with Maxima. He appeared incensed at the prospect of having to increase his work efforts.
96. The Tribunal is satisfied that Maxima had the power delegated to it under Instrument SSL 15/2006 (“Delegation of Powers in relation to notices and activity agreements to Employment Service Providers”) to require Mr Kronen to enter into an activity agreement and to define the terms of such an agreement.
97. Mr Denny appeared a reasonable person. He had considerable experience as an employment consultant. The Tribunal accepted his evidence as to his dealings with Mr Kronen and as to the reasonableness of the conditions that he wanted included in the activity agreement.
98. Given that the NSA participation failures have occurred, the Tribunal must look to whether there is any reasonable excuse in this case that would exculpate Mr Kronen’s actions.
99. Section 624(2A) of the Act provides that the Secretary must make a determination with respect to matters that must be brought to account in considering reasonable excuse under s 624(2). Such a determination has been enacted and is referred to in paragraph 22 (supra).
100. Mr Kronen agrees that none of the specific circumstances referred to in the reasonable excuse determination apply to him.
101. Section 624(2B) of the Act is quite specific in stating that the Determination does not limit the matters that can be taken into account when considering “reasonable excuse”.
102. Mr Kronen asks the Tribunal to accept that during the period in question, he was actively looking for work and so, in his view, he had the intention to carry out his obligations under the Act. He was however, not willing to sign the agreement in the form required by Maxima and he considers his actions were reasonable. He says that Maxima were unreasonable and discourteous in their treatment of him and this gives rise to a finding of “reasonable excuse” on his part.
103. The Act is very specific in that even if a person is actively looking for work, s 601(5) provides that if they fail to comply throughout a period with the terms of a NSA activity agreement, then the person cannot be taken to satisfy the activity test in spite of any compliance with the activity test as set out in s 601(1) of the Act.
104. The Tribunal has no evidence in any event that Mr Kronen was actively looking for work throughout the relevant periods, but even if he were, the provisions of s 601(5) preclude any consideration of job seeking activities if a person does not comply with an activity agreement. He provided no evidence of job seeking and appeared pre-occupied by his dispute with Maxima for a lot of this period of time.
105. Mr Kronen presents as his excuse, Maxima’s conduct towards him and their refusal to enter into an agreement with him on the terms that he proposed.
106. The ability of a person in Mr Kronen’s position to negotiate the terms of an activity agreement is not judged according to ordinary notions of freedom of contact, but must be viewed in the context of the statutory provisions of the Act.
107. In Re Bartlett and Secretary, Department of Social Security (1994) 33 ALD 661, the Tribunal noted:
“… Its provisions in relation to Newstart Activity Agreements detract from the operation of the common law principle of freedom of contract, in so far as they permit the Secretary to require that agreements be entered into, and provide for possible adverse financial consequences in the event of a person failing to agree to contractual terms proposed by a CES officer. …”
108. Mr Kronen fails to appreciate that he does not have the full right of a contracting party at common law in this case. The Tribunal is satisfied that Maxima were entitled to require Mr Kronen to enter into an activity agreement in the proposed terms and that there is no evidence that Maxima acted other than reasonably towards Mr Kronen.
109. He was given notice of the appointments on all dates referred to in paragraph 27. He failed to attend. Where there are three participation failures within a 12 month period, then an eight week non-payment period can be imposed under s 629 of the Act.
110. The Tribunal does not accept that there is any reasonable basis for Mr Kronen to have behaved in the way that he did. His issues with Maxima staff did not constitute a reasonable excuse for committing the failures in question. His clauses that he proposed for the activity agreement were not reasonable in the circumstances. Mr Kronen presents as a difficult and inflexible person who had fixed views as to his rights when negotiating with Maxima.
111. The Tribunal finds that there was no reasonable excuse for the participation failures and that the non-payment periods were correctly imposed for the following periods:
·11 April 2008 – 5 June 2008;
·9 May 2008 – 3 July 2008; and
·6 June 2008 for 8 weeks.
112. The only other decision to consider is whether it was appropriate that his NSA be cancelled on 6 June 2008.
113. Mr Kronen persistently refused to co-operate with Maxima for six months. His attendance at Rapid Connect meetings was not sufficient to satisfy the activity test. He refused to enter into a NSA activity agreement in the terms proposed. He declined the invitation to move to a new employment service provider. Sections 593(1)(d) and (3) of the Act provide that to qualify for NSA, a person must be willing to enter into an activity agreement if required to do so.
114. It was apparent by June 2008 that Mr Kronen was determined not to enter into a NSA activity agreement.
115. He had been given more than adequate time to consider the terms of the activity agreement and to co-operate. He had been warned that his failure to enter into an activity agreement would disqualify him from receiving payment.
116. In the circumstances, the Tribunal affirms the decisions of the SSAT of 24 July 2008 and 7 November 2008. The relevant non-payment periods were correctly imposed and the decision to cancel Mr Kronen’s NSA was correct in the circumstances.
I certify that the 116 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................
AssociateDate of Hearing 8 December 2008
Date of Decision 22 April 2009
Advocate for the Applicant Self representedAdvocate for the Respondent Ms L Giaretto
Centrleink Legal Services andProcurement Branch
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