Janes and Secretary, Department of Employment and Workplace Relations
[2008] AATA 591
•8 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 591
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2007/12
GENERAL ADMINISTRATIVE DIVISION ) Re JULIAN JANES Applicant
And
SECRETARY. DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms L R Tovey, Member Date8 July 2008
PlacePerth
Decision The Tribunal:
1. Sets aside the decisions of the Social Security Appeals Tribunal made on 6 November 2006, and the Respondent made on 31 August 2006 and 17 October 2006, to impose a 26 week non-payment period in respect of the Applicant's newstart allowance from 1 September 2006 to 1 March 2007; and
2. Directs the Respondent to make an appropriate adjustment to the payments of the Applicant's newstart allowance.
.......(sgd) Ms L R Tovey.................
Member
CATCHWORDS
SOCIAL SECURITY – newstart allowance – whether Applicant reduced employment prospects by moving to a new place of residence
Social Security Act 1991 (Cth), s 634
Higgins v The Commonwealth (1998) 79 FCR 528.
Re Minister for Resources; ex parteCazaly Iron Pty Ltd (2007) 34 WAR 403.
Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277.
Re Secretary, Department of Employment and Workplace Relations and Ferguson [2007] AATA 1009.
Re Secretary, Department of Employment and Workplace Relations and Morgan [2007] AATA 1464.
Re Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745.
Re Secretary, Department of Employment and Workplace Relations and Trajcevski (2005) 87 ALD 138.
Re Secretary, Department of Family and Community Services and Pitkin (2005) 87 ALD 119.
Re Secretary, Department of Social Security and Prince (1990) 22 ALD 503.
REASONS FOR DECISION
8 July 2008 Ms LR Tovey, Member 1. This is an application for review instituted by Mr Julian Janes in respect of a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 6 November 2006. The SSAT affirmed a decision of a delegate of the Secretary, Department of Employment and Workplace Relations (“the Secretary”) made on 31 August 2006. The Secretary’s decision was to impose a 26 week non-payment period in respect of Mr Janes’ newstart allowance from 1 September 2006 to 1 March 2007. The original decision had also been affirmed by an authorised review officer of the Secretary on 17 October 2006.
BACKGROUND
2. Mr Janes is a 38 year old single man who has been in receipt of newstart allowance for most of the period since January 2003. Between January 2003 and July 2006 Mr Janes resided in the Margaret River region of Western Australia. From January 2003 until July 2005 he worked in casual employment as a play leader at the Margaret River Recreation Centre. He has also been employed as an assistant in the Margaret River Soup Kitchen, as part of the mutual obligation requirements of the newstart allowance regime. Prior to 2003 he had worked as a telecentre coordinator.
3. In August 2006 Mr Janes moved his residence to Byron Bay, with the intention of undertaking a yoga instructors’ course using training credits which he had accumulated. He wished to undertake that course as he thought yoga would assist his back complaints and because it was an alternative career he wished to pursue. Mr Janes’ search of the internet located two yoga instructors’ courses, one conducted in Sydney and the other in Byron Bay. He also hoped that his chances of gaining employment in the IT field would be improved at Byron Bay. He decided to start a new life in Byron Bay and, after selling most of his possessions, drove his Ford panel van to Byron Bay in July 2006.
4. At the Western Australian/South Australian border Mr Janes was stopped by police who placed a “yellow sticker” on his vehicle.
5. On arriving in Byron Bay Mr Janes lived in his car for a time, before finding suitable accommodation in Byron Bay on 18 August 2006. He found that he spent a good deal of the money which he had saved for the yoga course on living expenses and the purchase of a new car, which was required due to the placement of the work order on his old vehicle.
6. Having found accommodation, Mr Janes attended the Byron Bay Centrelink office on 18 August 2006 and completed a “Moving to a New Location Customer Declaration”. At that time he indicated the reason for his moving was “to study yoga instructor level 1 course + increase chance of gaining employment in the IT field”.
7. On 31 August 2006 a delegate of the Secretary determined that a 26 week non-payment period should be applied to Mr Janes’ newstart allowance on the basis that he had moved to an area of lesser employment prospects. That decision was affirmed by an authorised review officer of the Secretary on 17 October 2006 and by the SSAT on 6 November 2006.
8. Following the Secretary’s decision to impose the non-payment period, Mr Janes gained employment at the Star Internet Café at Byron Bay as a “computer technician/front desk operator” in September 2006. At this job he was paid at a below award rate of $10 per hour and would earn approximately $80-120 for a weekend shift.
9. In the absence of support from Centrelink, Mr Janes was unable to undertake his yoga instructors’ course. He was also unable to afford to reside in Byron Bay and moved to a place called the Rainbow Temple in Rosebank where he was able to stay for free. Rosebank is located about 30 minutes drive from Byron Bay, and Mr Janes would stay there during the week and drive to Byron Bay for his shift at the internet café on weekends, sleeping in his car overnight. He returned to Western Australia in early December 2006.
10. Mr Janes now seeks a review of the decision of the SSAT by this Tribunal.
LEGISLATION
11. It is not in dispute that Mr Janes was entitled to newstart allowance during the relevant period subject to the consequences of his change of residence from Margaret River to Byron Bay. The potential consequences are provided for by s. 634 of the Social Security Act 1991 (Cth) (“the Act”), which is relevantly in the following terms:
“634 Move to area of lower employment prospects
(1)… if, in the opinion of the Secretary, a person has reduced his 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. …
(3)For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person:
(a)moves to live with a family member who has already established his or her residence in that place of residence; or
(b)moves to live near a family member who has already established residence in the same area; or
(c)satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member; or
(d)satisfies the Secretary that the person has moved from his or her original place of residence because of an extreme circumstance which made it reasonable for the person to move to the new place of residence (for example, the person had been subjected to domestic or family violence in the original place of residence).
(4)The Secretary may determine in writing the day on which the period of non‑payment imposed by subsection (1) commences and that day may be before the day of the determination.”
12. Under s. 634(1B) if, during the 26 week non-payment period, a person to whom s. 634(1) applies moves back to either:
(a)their original place of residence; or
(b)another place of residence that would not have resulted in newstart allowance not being payable under s. 634(1) if the original move was to that place,
then the 26 week non-payment period is reduced accordingly.
APPLICABLE PRINCIPLES
13. Section 634 was introduced into the Act by the Social Security (Job Search and Newstart) Amendment Act 1991 (Cth). The validity of the legislation was upheld by Finn J in Higgins v The Commonwealth (1998) 79 FCR 528. In the course of his decision in that case Finn J identified the object of the amending legislation and s. 634 in the following terms at 533-4:
“Without attempting to describe in any comprehensive way the object of the newstart scheme, it represented a distinctive initiative to assist long-term unemployed persons to re-enter the workforce and by the adoption of expedients which, in seeking to maximise their chances of such occurring, sought also to guard against certain actions that might jeopardise this. Section 634 is a provision having this latter function. It is designed to withdraw a benefit where, by change of residence, a person reduces his or her chances of finding employment. …
As both the scheme of Pt 2.12 and the second reading speeches make plain, the legislation balances the community's obligation to the unemployed with reciprocal obligations in the persons receiving the allowance positively to act to promote their hoped for re-entry into the workforce.”
14. Section 634 depends for its operation on the formation of an opinion by the Secretary or, in these proceedings, by the Tribunal standing in the shoes of the Secretary. If that opinion is validly formed, newstart allowance is cancelled for a period of 26 weeks from the date determined by the Secretary.
15. There are three elements of the opinion the Secretary is required to form. The first is that there has been a reduction in the person’s employment prospects. The second is that the reduction has been caused by the person moving to a new place of residence. The third is that the reason for moving was not one of the specified “sufficient” reasons. Unless the Secretary, or in these proceedings the Tribunal, is positively satisfied of all three elements of the opinion prescribed by s. 634(1) of the Act, the provision is not engaged.
16. The first of those elements is a matter personal to the recipient of newstart allowance. It requires an identification of any reduction in his prospects of employment. The section requires that attention to be given to the personal prospects of employment of the particular person. It is not directed to the unemployment rate or the employment prospects for persons generally in a geographic area. The first two elements are inter-related, and it may well be in a particular case that a person’s individual employment prospects are reduced because of the generally low employment prospects in the place to which they move. However, it is necessary to maintain focus on the individual employment prospects of the particular person to whom the provision is to be applied.
17. The need to look to the particular prospects of the individual person to whom the provision is sought to be applied has been emphasised in a number of decisions of this Tribunal. Those decisions have rejected the approach of relying on a comparison of general statistics about unemployment rates and workforce participation in the relevant areas to infer that a move to a new place of residence has reduced a person’s employment prospects. For example in Re Secretary, Department of Family and Community Services and Pitkin (2005) 87 ALD 119 at 130, [70] Member S Webb said:
“Plainly, general unemployment statistics do not provide a reasonable measure of the employment prospects of a person and such general statistics are likely to conceal a wide variety of demographic and labour market factors. The amount of unemployed people seeking jobs in an area is one measure of competition for paid work. However, in order to assess the employment prospects of a person it is necessary to consider the extent of competition for paid work that is suitable for the person rather than in relation to all paid work as well as the particular employment attributes of the person. Furthermore, the extent of competition for suitable paid work must be considered in relation to the amount or percentage of such work that is available.”
That also reflects the approach taken in cases such as Re Secretary, Department of Social Security and Prince (1990) 22 ALD 503, Re Secretary, Department of Employment and Workplace Relations and Trajcevski (2005) 87 ALD 138, Re Secretary, Department of Employment and Workplace Relations and Ferguson [2007] AATA 1009 and Re Secretary, Department of Employment and Workplace Relations and Morgan [2007] AATA 1464.
18. In Pitkin at 129, [65] Member Webb identified a number of subsidiary questions which need to be addressed when inquiring as to whether a person has reduced his or her employment prospects by moving to a new place of residence. Those questions, which he indicated were not necessarily exclusive, were:
"(a)the person’s capacity for work and their employment attributes, including any particular skills, training, qualifications and experience or capability of the person relevant to obtaining paid work;
(b)paid work that the person may have a reasonable prospect of obtaining, that is paid work within the person’s capability or for which they are suited that is not unsuitable work for the person;
(c)variances, if any, in the availability or percentage of paid work that is not unsuitable for the person in the person’s original and new places of residence;
(d)variances in the number or percentage of job seekers with comparable work capacities to the person within the local or regional labour market in the original and new places of residence; and
(e)the existence of regional demographic, labour market or economic factors that may affect the person’s employment prospects in either place."
19. In Pitkin at 123, [34]-[35] Member Webb also discussed the meaning of the term “employment prospects” in the following terms, which I adopt:
“In this case the meaning of “employment prospects” is in issue. The term has no special meaning under the Act. Nevertheless, following Director-General of Social Services v Thomson (1981) 53 FLR 356 ; 38 ALR 624 in which the Federal Court accepted that paid work is the antithesis of unemployment, the term “employment prospects” in the context of the newstart allowance provisions under the Act is directed to paid work that is not unsuitable for the person. For present purposes, “employment prospects” means the possibility or likelihood of or potential for obtaining paid work. That interpretation is consistent with the scope of the qualification criteria for newstart allowance (s 593(1)) and the newstart allowance “activity test”: s 601(1). An interpretation applying a broad dictionary definition of “employment” (see, for example: A Delbridge (et al) (eds), Macquarie Dictionary, 3rd ed, Macquarie Library, North Ryde, 1997) would encompass all manner of services and work, whether paid or unpaid. Such an interpretation would be contrary to the plain intention of the newstart allowance provisions under the Act and would be inconsistent with the general understanding of the term when applied to a person in common usage.
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. Section 634(1) requires a comparative assessment of the person’s employment prospects in their “original” and “new” places of residence.”
20. In Pitkin at 129, [65] Member Webb recognised that the questions he identified were to be addressed “at or about the time the person moved from one place of residence to another”. That reflects the concern of the provisions with a person’s “employment prospects”. Whether the person actually obtains, or fails to obtain, employment in a place will be relevant to the extent that it provides evidence of their employment prospects. However, evidence of that kind needs, in my view, to be approached with caution. A person may move to a place where the likelihood of their obtaining employment is less, but be lucky enough to obtain employment “against the odds”. Equally, there may be other factors which are relevant to whether a person actually obtains employment. For example, a person whose payments of newstart allowance are suspended may be more motivated to find work, so that they in fact achieve gainful employment in a place where their employment prospects are relatively lower. The question posed by s. 634(1) will ordinarily be first addressed at the time when the person moves to a new place of residence, and concerns the relative employment prospects in the places from which, and to which, they have moved. It is the assessment of the employment prospects at that time, rather than whether the person was actually able or unable to find work, to which attention should be directed.
21. That is not to say that the assessment is limited to the prospects of immediate employment. That is, while the assessment of employment prospects must be undertaken at or about the time the person moves, there is no reason why the employment must be immediate.
22. The point may be illustrated by example. Suppose that a person in an area where their prospects of permanent full-time employment in the medium term are high moves into an area where casual seasonal employment is the only suitable employment in prospect for the person. If the person moves at the last month of the season, their prospects of immediate very short term employment may be high in comparison to their prospects of gaining employment within a month at the place of their former residence. In such a case, however, it may well be open to the Secretary to form the opinion in those circumstances that the person’s employment prospects have in fact reduced as a result of the move, when regard is had to the medium term.
23. Equally, the availability of training which may lead to paid employment within a reasonable period of time is not to be ignored. The availability of training which a person intends to undertake in one place but not another may affect the relative prospects of the person obtaining employment for which that training is a prerequisite.
ISSUE
24. In my view the issue which I am required to determine is whether, in my opinion, Mr Janes reduced his employment prospects by moving his place of residence from Margaret River to Byron Bay. There was no evidence produced before me which suggested that the move may have been for what s. 643(3) of the Act exhaustively defines as “sufficient circumstances”.
CONSIDERATION OF THE ISSUE
Guide to the Social Security Law
25. Mr Janes put his primary case on the basis that the policy set out in the Guide to Social Security Law should lead to the conclusion that his payments of newstart allowance should not have been suspended.
26. The Guide contains the following provision:
“How does Centrelink decide whether a person has lowered their employment prospects?
Centrelink compares unemployment rates between the person's previous permanent address and their new address, taking into consideration the 90-minute commuting rule. A preclusion period applies if the job seeker moves to an area with an unemployment rate more than 2% higher than the place they have moved from, unless they have a sufficient reason for the move (see below) or they can demonstrate they have improved their employment prospects by moving despite the comparative unemployment rates. It is not necessary to consider a preclusion period if a job seeker moves to or between the 5 major metropolitan areas (Sydney, Melbourne, Brisbane, Perth and Adelaide).”
27. The Guide subsequently explains the "90-minute commuting rule" in the following terms:
“90-minute commuting zone
The commuting distance is defined as 90 minutes commuting time (each way) by the transport method that the person has available to them.
A person cannot be taken to have moved to an area of lower employment prospects if that area is within 90 minutes commuting time of an area with employment prospects equal to or higher than those of the area from which they moved.”
28. Mr Janes' argument is that he falls within this latter provision. He says, in effect, that statistical data produced by the Secretary shows that there are a number of areas within a 90 minute drive from Byron Bay where the unemployment rate was, at the relevant time, equal to or lower than Margaret River and in which he has not been shown to have lower employment prospects than Margaret River. Therefore, applying the Guide, Mr Janes says that he cannot be taken to have moved to an area of lower employment prospects.
29. If regard were to be had to only the terms of the Guide, I would agree with that submission. The application of that policy would, in my view, lead me to the view that I could not be satisfied that Mr Janes' employment prospects at all points within a 90 minute drive of Byron Bay were not equal to or higher than his prospects in Margaret River.
30. However, the Guide does not have the force of law. Rather it is an administrative policy which has been prepared by the Departments responsible for the administration of the Act to assist them in that task, and provide information and guidance to interested persons as to the manner in which the Act is administered. The Secretary notes the recent statement of Deputy President Forgie in Re Secretary, Department of Employment and Workplace Relations and Payne [2007] AATA 1745 at [39] - [40] (citations omitted):
“The general principle is that the power to give directions and make guidelines is determined by reference to ‘ … the subject matter, scope and purpose of the statute …'. Equally, the scope of any discretion given to a decision-maker under the social security law depends on the latitude of the subject matter, scope and purpose of the Act. A decision-maker is free to adopt a policy to guide it in the exercise of its discretion provided its policy is consistent with the Act. and does not require it to take irrelevant circumstances into account.. A policy ‘ … must leave … [the decision-maker] free to consider the unique circumstances of each case … [It] does not control the making of decisions … [but] is informative of the standards and values which a … [decision-maker] usually applies … '. That this is so is illustrated by the way in which the Tribunal must carry out its duties:
‘… the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.’
It follows that policy and guidelines can guide decision-making but only if that policy and those guidelines are consistent with the legislation itself. The legislation, therefore, must provide the firm framework on which the policy and guidelines are built by defining their boundaries and limiting their content. As a general principle, the policy and guidelines do not shape the legislation. Therefore, policy and guidelines cannot be used to identify the boundaries and content of the legislation. That is to say, they cannot be used to interpret a particular provision of the legislation.
31. Consistently with that approach, the general law requires that a policy which an administrative decision maker adopts not be inconsistent with the relevant legislation: Re Minister for Resources; ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403 at [136] citing Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at 289, [24].
32. In my view the parts of the Guide reproduced above are inconsistent with s. 634 of the Act in several important respects.
33. Firstly, the Guide indicates that Centrelink will ordinarily decide that a person has lowered their employment prospects if they move to an area where the unemployment rate is more than 2% higher than the area of the person’s previous residence. That focus on the general unemployment rate, rather than the employment prospects of a particular person, is inconsistent with the requirements of the Act which I have previously set out. It has previously been criticised by the Tribunal for that reason: see Ferguson at [12].
34. Secondly, once the “2% rule” is satisfied, the Guide places the onus on the person affected to demonstrate that they have improved their employment prospects. That is inconsistent with the requirement of s. 634(1) that the Secretary form an opinion that the person has reduced their employment prospects by the moving to a new place of residence before the non-payment period is applied. Unless there is material to justify the formation of such an opinion (which a comparison of general unemployment rates will not constitute) there is no warrant for applying the non-payment period. It is therefore, in my view, inconsistent with the requirement of the Act to place the onus on the person in receipt of newstart allowance. Further, the question is whether the person’s employment prospects have been reduced. To answer that question in the negative, it is not necessary to show that employment prospects have improved.
35. Thirdly, the second part of the Guide, relating to the 90 minute commuting time, focuses on the employment prospects of an area within 90 minutes of a person’s residence, rather than the employment prospects of a person when living at that residence. In assessing the employment prospects of a person when living at a place, it is no doubt proper to take account of opportunities existing within a reasonable commuting distance of the person’s residence. However, the focus must be on the employment prospects of that person when living at the place of residence, not the employment prospects of a place which is within a 90 minute trip from the person’s place of residence.
36. Having regard to the above inconsistencies between the Guide and the Act, I do not consider it to be appropriate to follow those parts of the Guide which relate to the manner of determining whether a person has reduced their employment prospects by moving to a new place of residence. It follows that the case cannot be determined in favour of Mr Janes simply by reference to that part of the Guide.
Mr Janes’ Capacity for Work
37. Mr Janes' curriculum vitae was produced to the Tribunal by the Secretary and was not disputed by Mr Janes. It provides a useful summary of Mr Janes’ qualifications and employment history.
38. Mr Janes graduated from John Curtin Senior High School in 1987 and completed the first year of a degree of Bachelor of Science and Recreation at Edith Cowan University in 1989. He did not complete that degree, but did complete a “NES Small Business Management Degree” in 1992. He also worked as a sales person at a Perth Jeweller’s store between 1988 and 1992.
39. Mr Janes' only professional qualification in computing noted on his resume is a Certificate III in Business Office Skills and Computer Fundamentals completed at Margaret River TAFE in 1999. In his evidence he described the course as a Certificate IV course in Computer Fundamentals, although nothing turns on this difference. Mr Janes told me that he had been “pulling computers apart since then, I could grab any computer in this place and dismantle and put it back together blindfolded”. He accepted that he was largely self-taught. His employment history includes working as an “Assistant Games Programmer” at a Fremantle media company from 2000-2001, and as a “Telecentre Coordinator” at Greenbushes from 2001 to 2003. He told me that his work at the Telecentre was part-time and only earned him about $160 per week, although he was able to live on that amount without welfare assistance. He described a “coup” at the committee which ran the telecentre that led to him being “ousted” from his job.
40. Mr Janes also has qualifications and experience as a child care worker. He has a Certificate IV in Out of School Hours Care from TAFE in Margaret River and Child Protection in Children’s Services Training, both undertaken in 2004. He has completed first aid certificates in 2003 and 1998. He worked as a play leader in after school care in East Fremantle from 1996 to 1997 and in Margaret River from 2003-2005. He set up a computer network at the Margaret River after school care. This was part-time work. Following a conflict with a supervisor in 2005 Mr Janes found himself left off the work roster at the Margaret River Centre.
41. Mr Janes' other work experience is as a vineyard supervisor in Margaret River from 1998-2000. However, he told me that at the time of his move to Byron Bay his back complaint prevented from undertaking vineyard work or other work involving heavy or repetitive manual labour. His evidence in this regard was supported by a medical certificate issued by a general practitioner on 9 November 2006. The diagnosis given was “stress/anxiety” and “osteoarthritis mid/lower back”. The doctor expressed the view that Mr Janes was unfit for work between 26 September and 26 November 2006, and was not able to do more than 8 hours work a week. Mr Janes' evidence to me was that he did not want to rely on medical certificates and it was clear his treatment has been intermittent. However, his evidence as to his back complaint is supported by this medical certificate and unchallenged by any other evidence. I therefore accept Mr Janes' evidence as to the nature and extent of his back condition, which prevents him from doing heavy or repetitive manual labour. I find that, at the time of his move, this condition prevented him from working in the vineyard industry. It also prevented him from undertaking semi-skilled or unskilled work involving heavy or repetitive manual labour, although did not prevent him from undertaking work in the IT or childcare industries or other unskilled or semi-skilled work that did not involve repetitive or heavy manual labour. For example, in the hospitality industry, the condition would have prevented him from working as a cleaner, but would not have prevented him from customer service work.
42. Mr Janes would also have been capable of working as a yoga instructor if he had completed a relevant course and gained that qualification.
Availability of Suitable Work in Margaret River and Byron Bay
43. It is then necessary to consider the comparative availability of suitable work in Margaret River and Byron Bay in August 2006.
- IT Work
44. The evidence is that there was no suitable work in the IT industry in Margaret River during the relevant period. Mr Janes' evidence was that he found no vacancies in the IT industry in Margaret River before moving to Byron Bay. He denied having missed an interview for a position in the IT industry which had been arranged for him. Since his return to Margaret River in December 2006 he had been referred to two positions. He was regarded as unsuitable for one because the prospective employer wanted a junior person, and unsuitable for the other because of his lack of qualifications. The Secretary has not produced any evidence of IT positions available in Margaret River during the relevant period. The evidence of Mr Palmer from PVS Workfind, the job search agency to which Mr Janes was attached while in Western Australia, did not mention any employment opportunities in the IT industry in Margaret River.
45. Mr Janes refers to his ability to gain part-time employment at the internet café as evidence of the availability of IT work suitable for him in Byron Bay. However, that position was of limited immediate suitability as it paid a very low rate and produced only $80-$120 income per week. Mr Janes’ evidence was that the business was just being established and hoped to increase the volume of its customers as the tourist season approached. Mr Janes said that the manager of the business told him that there was a prospect of better wages and more hours if that occurred.
46. Advertisements for the Byron Bay area produced by the Secretary did not show any significant number of IT positions, although there was one position for “Web developer” in Byron Bay. It is not clear whether Mr Janes would have been suitable for this position. A website showing IT positions in NSW did not disclose any opportunities in the Byron Bay area.
47. The Secretary produced survey evidence which suggested that, at the NSW State level, there was generally an adequate supply of skilled employees in the IT field. I did not find this evidence to be of any significance for the questions I am required to address, as it does not say anything about the supply of IT employees in the Byron Bay area.
48. Taking all of this evidence into account I find that, at the relevant time, there were no IT opportunities of which Mr Janes could have availed himself in Margaret River and limited opportunities in the Byron Bay area. I consider Mr Janes' prospects of finding suitable employment in the IT industry were slightly greater in Byron Bay. The fact that Mr Janes found employment at the internet café, which had the potential to develop into better remunerated employment in the short term, illustrates this. While that evidence needs to be treated with caution for the reasons I have explained above, it shows that there was at least some IT employment which Mr Janes may have gained in Byron Bay while there is no evidence of any available employment in Margaret River.
- Child Care Work
49. There was no evidence of any available positions in after school child care in either Margaret River or Byron Bay at the time Mr Janes moved his place of residence to Byron Bay. I am unable to find that there was any difference in the availability of child care positions in Byron Bay and Margaret River.
- General Unskilled and Semi-Skilled Employment
50. The employment advertisements produced by the Secretary suggest that there was limited availability of unskilled work not involving heavy or repetitive labour in Byron Bay. Advertisements from Margaret River were not produced to enable a comparison to be drawn.
51. Mr Palmer’s evidence was that available types of work in the Margaret River area were vineyard pruning and thinning vines, hospitality or cleaning employment. The main types of work in the Margaret River and Busselton area were seasonal work for the viticulture industry, hospitality and building and construction (general labouring). However, I find that, because of his back complaint, work in the viticulture industry and building and construction industry would not have been suitable or obtainable for Mr Janes. Work as a cleaner would also have been unsuitable for that reason. Therefore, the principal kinds of work identified by Mr Palmer were not in fact suitable for Mr Janes by reason of his medical condition.
52. The area which Mr Palmer identified that would have been suitable for Mr Janes was work in the hospitality industry at wineries, restaurants and cafés in the area, as a kitchenhand, waitstaff or barristas. That work was seasonal and casual, but with full-time equivalent hours during peak seasons of summertime, long weekends and school holidays.
53. The evidence is also that Mr Janes was in fact unable to obtain any employment in Margaret River for some 18 months prior to his move to Byron Bay. The kind of jobs to which Mr Janes was referred during the period were identified by Mr Palmer as nursery hand, delivery driver, laundry worker, cleaner, kitchen hand courier driver and labourer. This is the best evidence of the kind of positions available in Margaret River. Mr Palmer’s company was unable to refer Mr Janes to many positions in the hospitality industry. That suggests that the extent of opportunities for Mr Janes in the hospitality industry were more limited than Mr Palmer’s statement suggests. Were it otherwise, I would expect PVS Workfind to have referred Mr Janes to that kind of employment.
54. Ms Hanking-Evans, an employment consultant at Byron Bay, gave evidence as to the employment prospects in Byron Bay. She described the main areas of employment as being in the retail and hospitality sectors. The hospitality work available seems to be equivalent to that which was available in Margaret River – seasonal casual positions as a kitchen hand, barristas and wait staff.
55. Based on the above evidence, I am unable to conclude that there was any significant difference in the type or number of suitable positions available in the Byron Bay and Margaret River areas.
- Yoga Instructors
56. There was no evidence of any advertised vacancies as yoga instructors either in Margaret River or Byron Bay. Neither Mr Palmer nor Ms Hanking-Evans gave any evidence about the extent of opportunities for employment as a yoga instructor in either Margaret River or Byron Bay.
57. Mr Janes gave evidence that he had spoken to a lady in Byron Bay who had indicated that she would give him a trial as a yoga instructor but for the fact that he was not qualified. There was no evidence of any opportunity to undertake that training in Margaret River. This evidence suggests that the availability of positions as a yoga instructor in the medium term were slightly greater in Byron Bay than in Margaret River. There is no evidence that the number of such positions in Byron Bay were less than in Margaret River.
- Summary of Findings as to availability of Suitable Work
58. I have found that the availability of IT related employment, and employment as a trained yoga instructor were probably both slightly greater in Byron Bay than in Margaret River at the time of Mr Janes move to Byron Bay. I am unable to ascertain any difference in the availability of other kinds of suitable work in Byron Bay and Margaret River at the relevant time.
Competition for Available Work in Margaret River and Byron Bay
59. The Secretary produced evidence, which I accept, that the general unemployment rate in and around Byron Bay was, at the relevant time, significantly higher than the unemployment rate in and around Margaret River. In the September 2006 quarter the general unemployment rate was 3.2% in Margaret River, 3.2% in Busselton and 3.6% in Bunbury. By comparison the general unemployment rate in Byron Bay in the same quarter was 11.1%. The rate at that time was 8-8.7% in Lismore, 5.9% in Ballina and 7-7.5% in Tweed Heads.
60. Further, the number of unemployed people was greater in Byron Bay than in Margaret River at the relevant time. Again the Secretary referred to statistical material, which I accept, that the number of unemployed persons in Margaret River in the September 2006 quarter was 203, while the number in Byron Bay was 1,594.
61. There was, however, no statistical data which showed the number of persons with qualifications or experience, even at a low level, in the IT or child care industries in Byron Bay and Margaret River.
62. I have also taken account of the evidence of Ms Hanking-Evans that there was a continual flow of backpackers with experience in cities for employers to choose from, and that competition for available jobs in Byron Bay was high.
63. Based on the above evidence I find that the competition for available general unskilled or semi-skilled employment was greater in Byron Bay than in Margaret River at the relevant time. However, the evidence does not demonstrate that the competition for jobs in the IT or child care industries was any different in Byron Bay as compared to Margaret River. The general unemployment statistics do not disclose the comparative number of persons seeking work with experience or qualifications in those industries in Byron Bay and Margaret River.
Conclusion as to Employment Prospects
64. I am of the view that Mr Janes' prospects of obtaining employment in the IT industry were slightly greater in Byron Bay than in Margaret River. That follows from my finding that the availability of employment in the IT industry was slightly greater in Byron Bay than in Margaret River, and the absence of evidence which satisfies me that the competition for that employment from persons with qualifications and experience in that industry was any greater in Byron Bay than in Margaret River.
65. I am also of the view that Mr Janes' prospects of employment as a yoga instructor were slightly greater in Byron Bay than in Margaret River. I make that finding having regard to the availability of an instructors' course which Mr Janes planned to undertake in Byron Bay, which was unavailable in Margaret River, and Mr Janes' evidence of his contact with a prospective employer which shows some demand in Byron Bay for qualified instructors. Centrelink's decision to suspend his payments had meant that he was unable to undertake the course which was available at Byron Bay. However, at the time of his move to Byron Bay Mr Janes had an opportunity to obtain training as a yoga instructor and there was at least some prospect of his obtaining employment in that role once qualified. Against that must be balanced the greater competition for work of that kind in Byron Bay. Having regard to the fact that Mr Janes was yet to be qualified as a yoga instructor, he was in no better position to obtain that employment than other unqualified persons seeking that employment. As I have noted, there was a greater number of unemployed persons, many of whom could presumably have undertaken such a course, in Byron Bay. However, the evidence does not show what proportion of those persons would have had Mr Janes' interest in pursuing that vocation, or the willingness to undertake the requires course. Taking all of those matters into account, I find that Mr Janes' prospects of employment as a yoga instructor were only slightly greater in Byron Bay, as compared to Margaret River.
66. I am unable to find that Mr Janes' prospects of employment in the child care industry were any different in Byron Bay than in Margaret River. There was no evidence before me as to the comparative availability of work in that industry in the two places, or the comparative numbers of persons with experience and qualifications relevant to the industry.
67. I do however find that Mr Janes' prospects of finding other suitable unskilled or semi-skilled employment were lower in Byron Bay than in Margaret River at the relevant time. I have indicated that I am I am unable to conclude that there was any significant difference in the type or number of suitable positions of this kind available in the Byron Bay and Margaret River areas. However, I have also found that the competition for that kind of employment was greater in Byron Bay than in Margaret River.
68. I have found, therefore, that Mr Janes' prospects of obtaining some kinds of work were greater in Byron Bay than in Margaret River, his prospects of finding other kinds of work were no different and that Mr Janes' prospects of obtaining some kinds of work were lower in Byron Bay than in Margaret River. That establishes that the kind of work which Mr Janes was likely to obtain may have been different in Byron Bay, as compared with Margaret River. However, it does not establish that his prospects of obtaining any kind of suitable employment were lower in Byron Bay. Taking all of the evidence referred to above into account, I am not satisfied that Mr Janes reduced his overall employment prospects by moving to a new place of residence in Byron Bay.
69. It follows that the decision of the Secretary and the SSAT should be set aside, and that Mr Janes' newstart allowance should not have been subject to a non-payment period. I will direct the Secretary to make an appropriate calculation of the arrears in payments owing to Mr Janes as a consequence of this decision.
DECISION
70. For the above reasons, the Tribunal.
(a)Sets aside the decisions of the SSAT made on 6 November 2006, and the Secretary made on 31 August 2006 and 17 October 2006, to impose a 26 week non-payment period in respect of Mr Janes' newstart allowance from 1 September 2006 to 1 March 2007; and
(b)Directs the Secretary to make an appropriate adjustment to the payments of Mr Janes' newstart allowance.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed: ..........(sgd) T Freeman........................
Associate
Date of Hearing 9 August 2007, 20 December 2007 and 25 February 2008
Date of Decision 8 July 2008
Representative for the Applicant In Person
Representatives for the Respondent Mr M Black and Mr Q Bastian
Centrelink Legal Services
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