Kuhn and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 319

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 319

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )  No 2007/4330

GENERAL ADMINISTRATIVE DIVISION )

Re DARREL KUHN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date18 April 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd]...........................

District Registrar

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – newstart allowance – activity agreement completed by applicant – offer of suitable work to applicant by employment service provider – applicant’s refusal to accept offer of employment –no reasonable excuse for refusal – newstart allowance not payable for a period of eight weeks – decision under review affirmed.

Social Security Act 1991 ss 16C, 23, 593, 601, 629

Social Security (Reasonable Excuse) (DEWR) Determination 2006 s 4

REASONS FOR DECISION

18 April 2008  RG Kenny, Member

Background

1.      Prior to November 2006, Darrel Kuhn was in receipt of newstart allowance which is a form of income support payable in accordance with the terms of the Social Security Act 1991 (the Act).  In accordance with a scheme under the Act, he was to be assisted in obtaining employment through the services of an employment service provider.  This was NEATO Employment Services (NEATO).  A member of that organisation advised Centrelink that, on 16 November 2006, Mr Kuhn refused to accept an offer of employment.  On 15 December 2006, Centrelink determined that Mr Kuhn was in breach of his obligations under the Act in that he failed, without reasonable excuse, to accept the employment offered to him by NEATO.  Centrelink imposed a newstart allowance non-payment period of eight weeks on him.  That decision was affirmed by an authorised review officer from Centrelink on 8 June 2007 and, on review, by the Social Security Appeals Tribunal on 6 August 2007. 

Issues for Determination

2.      Mr Kuhn concedes that he entered into an Activity Agreement (the agreement) with NEATO under the Act.  That agreement required him to do certain things including accepting all work referrals identified by NEATO between September and December 2006.  Mr Kuhn also conceded that he was offered and did not accept the offer of employment made to him by NEATO on 16 November 2006 but contended that he was not in breach of his obligations under the agreement or the Act in doing so.  The issue for determination is whether Mr Kuhn had a reasonable excuse for not accepting his employment offer.

Mr Kuhn’s Evidence

3.      Mr Kuhn gave the following evidence.  He entered into the agreement with NEATO and agreed that it required him to accept work referrals in November 2006 and that it also detailed penalties which might be imposed upon him if he refused to accept a suitable job offer.  These included the imposition of an eight week period in which he would not be paid newstart allowance. 

4.      On the morning of 16 November 2006, he attended the office of NEATO and spoke to his case manager, Ms N Wood.  He then went home and, shortly afterwards, was telephoned by Ms Wood who advised him that a job had become available.  He was told that it was a labouring position with an immediate start and a duration of four weeks.  He agreed to attend the office with his working clothes and did so.  There, he spoke to Ms Wood and her superior and was advised that he would be paid at the award rate.  He asked what that rate was and, after she contacted the employer, Ms Wood’s superior advised that it was within the range of $15 to $20 per hour.  He requested more specific information and was advised that this was something he would need to discuss with the employer.  He understood that overtime work may be involved and considered that he needed to know the actual rate before he would accept the offer.  He felt that he should be paid at least $18 per hour and, as he was not advised of any rate more specific than that it was within the $15 to $20 range, he refused the offer.  Mr Kuhn said that he had undertaken labouring positions previously and that he would have been able to do so in November 2006.  He said that he would have taken the job if he had been advised that the rate was at least $18 per hour.

5.      Mr Kuhn was critical of delays in the manner that NEATO dealt with his refusal to accept the position, in particular, in not notifying him that he may be penalised by Centrelink for doing so.  He said that he was not given that information at that time or by subsequent notification and that his first realisation of the penalty was when Centrelink refused to make a regular payment to him in December.  However, he conceded that he had signed the agreement and that it made specific reference to penalties for refusing work.  Mr Kuhn was also critical of the manner in which Centrelink dealt with documentation lodged by him subsequently.

Other Evidence

6.      In evidence was a statement from Ms Wood.  She referred to the phone call she made to Mr Kuhn and to the subsequent conversation that she had with him and her supervisor.  She said that Mr Kuhn told her that he was not interested in the position.  She also said that, at the time, she had wondered whether, because of his age, Mr Kuhn was physically capable of undertaking labouring work.

7.      Also in evidence was a copy of the agreement.  It lists activities that Mr Kuhn agreed to do in order to be paid newstart allowance.  These include his agreement to “accept all referrals to suitable positions” as identified by NEATO between 14 September 2006 and 22 December 2006.  The agreement also sets out sanctions that would apply in the event that he did not comply with the agreement.  These include the imposition of an eight week non-payment period if he refused a suitable job offer.

Submissions

8.      For Mr Kuhn, it was submitted by Ms M Muller, who attended to support him, that he had been willing to comply with his agreement and that this was demonstrated by his speedy response to Ms Wood’s phone call and by his attendance at the NEATO office in his work clothes.  It was also submitted that Mr Kuhn had not previously incurred a non payment period for breach of obligations and that the imposition of the eight week period was a harsh penalty for a first breach especially when he was not told, at the time, what the consequence of refusing the position might be. 

9.      Mr Amundsen submitted that the agreement signed by Mr Kuhn detailed the consequences of not accepting the job offered by NEATO and that he would have been aware of this.  He also submitted that it was sufficient for him to have been advised that the rate of pay was in accordance with the relevant award and that this had been done in his case.  He submitted that the offer was a genuine one, that it was for work to which Mr Kuhn was suited and that his failure to take it was unreasonable.

Consideration

10. Section 593 of the Act provides that, in order to qualify for newstart allowance, a person must satisfy the activity test. Section 601 of the Act sets out the means by which the activity test may be met. This includes the person’s being willing to undertake paid work other than that which is unsuitable to be undertaken by the person. Sub-section 601(2A) of the Act sets out the circumstances in which particular paid work is unsuitable for the purposes of s 601 and includes, in so far as relevant, that the person lacks skills, experience or qualifications needed to perform the work or that there is medical evidence that the person has an illness or injury that may be aggravated by the work. I have noted Ms Wood’s reservation about Mr Kuhn’s work capacity. However, there is no medical evidence or, indeed, other evidence that Mr Kuhn has an illness or injury that may be aggravated by the work offered to him. His evidence was that he was capable of undertaking the labouring work and I am satisfied that this was the case.

11.     Work will also be unsuitable where the terms and conditions for the work would be less generous than the applicable statutory conditions[1]. In s 23 and s 16C of the Act, this term is defined in the following terms:

[1] Paragraph 601(2A)(e) of the Act. 

“16C  Meaning of applicable statutory conditions

16C (1)  For the purposes of this Act, the applicable statutory conditions, in relation to particular work, are:

(a) if the work would be covered by the Australian Fair Pay and Conditions Standard:

(i) the minimum terms and conditions for the work under the Australian Fair Pay and Conditions Standard; and

(ii) if the work would also be covered by a transitional award–the minimum terms and conditions for the work under the transitional award, so far as the terms and conditions relate to rates of pay and casual loadings; or

(b) if the work would not be covered by the Australian Fair Pay and Conditions Standard, the minimum terms and conditions for the work under whichever of the following would cover the work:

(i) a pre‑reform certified agreement within the meaning of Schedule 7 to the Workplace Relations Act 1996;

(ii) a preserved State agreement within the meaning of Schedule 8 to that Act;

(iii) a transitional award (unless the employer in relation to the work would be an employer within the meaning of section 858 of that Act);

(iv) a State or Territory industrial law within the meaning of that Act;

(v) a State award within the meaning of that Act;

(vi) a State employment agreement within the meaning of that Act.

16C (2)  However, if the work would be covered by more than one agreement, award or law of a kind referred to in paragraph (1)(b), do not have regard to such an agreement, award or law to the extent that one or more of the others prevails over it in relation to the work.

16C (3) In this section, transitional award means a transitional award within the meaning of Schedule 6 to the Workplace Relations Act 1996.”

12.     Mr Kuhn said that he would have taken the job but for the information on the hourly rate of payment. I am satisfied that the rate of pay identified by NEATO staff and communicated to Mr Kuhn was the award rate and that this was not less generous than the applicable statutory conditions relevant to the work offered to him.

13.     In summary, I am satisfied that an offer of suitable work was made by NEATO to Mr Kuhn on 16 November 2006.  I am also satisfied that he refused to accept that employment offer.

14. Under s 629 of the Act, newstart allowance is not payable to a person for a period of eight weeks if the person has refused or failed, without reasonable excuse, to accept a suitable offer of employment. Sub-section 629(1A) of the Act requires that a legislative instrument is to be determined which lists matters to be taken into account in deciding whether a person has a reasonable excuse for refusing or failing to accept a suitable offer of employment. This has been done through the Social Security (Reasonable Excuse) (DEWR) Determination 2006 (the determination). Sub-section 4(2) of the determination lists the following matters:

“(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

(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.”

13. I am satisfied that none of those matters has direct relevance to Mr Kuhn. However, s 629(1B) of the Act provides that the determination of whether or not a person had a reasonable excuse is not limited to those matters. I have noted the contention that Mr Kuhn demonstrated a willingness to cooperate with the staff of NEATO by responding quickly to Ms Wood’s phone call. Whilst that may be so, he, nevertheless, refused to accept work because of lack of information concerning the hourly rate of pay. He was told that this would need to be settled with the employer and this should have been resolved in that manner. I have also noted the reference to this being his only breach and to the severity of the penalty. Nonetheless, that penalty is the consequence provided for in the Act. While NEATO may not have advised Mr Kuhn of the consequences of his action, the agreement, which he signed contains a provision in those terms and I am satisfied that he was aware that consequences would follow his refusal to accept the work offered to him. I am satisfied that Mr Kuhn had no reasonable excuse for doing so.

Decision

14.      The Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         .....................................................................................
  E. Young, Research Associate

Date/s of Hearing  10 April 2008
Date of Decision  18 April 2008
The Applicant was accompanied by Ms M Muller
Respondent   Mr M Amundsen, departmental advocate