Lazarou and Secretary, Department of Family and Community Services - [2000] AATA 911

DECISION AND REASONS FOR DECISION [2000] AATA 911

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1929

GENERAL ADMINISTRATIVE DIVISION       )
           Re      LAZARUS LAZAROU
  Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date18 October 2000
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ……………………………..
  R N J Purvis
  Deputy President
CATCHWORDS

SOCIAL SECURITY – newstart allowance – activity test – activity agreement – compliance – reasonable steps – non-attendance at job search training interview – whether failure to attend was in Applicant's control – intent

Social Security Act 1991

THE APPLICATION

This is an application made by Mr Lazarus Lazarou (herein after referred to as "the Applicant") on 15 December 1999 seeking review of a decision of a delegate of the Secretary of the Department of Family and Community Services ("the Respondent") and reviewed on 12 October 1999, whereby the rate of Newstart allowance otherwise payable to the Applicant was reduced. Such reduction was allegedly on account of the Applicant's failure to take reasonable steps to comply with the terms of a Newstart activity agreement entered into between himself and IPC employment ("IPC") on 29 July 1999. The said agreement was approved as required by the provisions of the Social Security Act 1991 ("the Act") by a delegate of the secretary on 30 July 1999. The original decision was reviewed and on 14 October 1999 the reviewing officer stated:
"…
I have reviewed the decision in my capacity as a review officer authorised under section 1301 of the Social Security Act 1991 ("the Act"). In doing so I have considered the information on your file and I have decided not to change the decision.
…
My decision was based on the following:

You signed a Newstart activity agreement on 29 July 1999;
Your signature on this agreement indicates you agreed to carry out the activities on the schedules attached to the agreement. Furthermore your initials on the schedule of agreed activities indicate you agreed to carry out the activities listed on this schedule. One of these activities required that you attend IPC on Tuesday 17 August 1999 at 9.30am for job search training;
According to the recommendation breach report completed by your job network member on 25 August 1999 you failed to comply with the activity on your agreement which requires you to attend 17 August 1999 at 9.30am for job search training;
In your statement dated 6 October 1999 [T76] you stated that IPC forced you to make the decision not to attend;
A file note by IPC detailing contents of your conversation with them on 25 August 1999 indicate that your reason for not attending the training was that you did not feel like it;
The correct decision was made by the Rockdale Customer Service Centre to reduce your rate of Newstart allowance.
…
I am unable to accept that you had a reasonable explanation for failing to carry out the activity on your agreement that required you to attend job search training on 17 August 1999. The available information indicates that you have not taken reasonable steps to comply with the activity on your agreement.
I have therefore decided that the correct decision was made to reduce your rate of Newstart Allowance and I now affirm that decision…" (T19, page 82, 83)

The Applicant appealed to the Social Security Appeals Tribunal, the latter tribunal on 26 November 1999 affirming the earlier decision. In his present application the Applicant states as his reasons for seeking review:
"Government office's (sic) seem to side with puplic (sic) servent's (sic) even there (sic) decision is wrong and has no justification which is the case with my aggravating problem that IPC and Social Security Appeal Tribunal have caused me." (T1, page 2)

THE HEARING

At the hearing of the application before this Tribunal the Applicant appeared on his own behalf, the Respondent being represented by Mr George Lozynzky, a departmental advocate.
The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975 were admitted into evidence and marked T1 – T45. The following written material was tendered as exhibits and marked accordingly:

Exhibit No. Description Date
A Handwritten letter from the Applicant to the AAT 21 February 2000

Witness statement from John Petrovski 28 May 2000

The Applicant gave oral evidence and was cross examined upon it. Mr John Petrovski, at the relevant time a case manager in intensive assistance with IPC employment, was called to give evidence by the Respondent. He was cross examined by the Applicant.
LEGISLATIVE PROVISIONS
The provisions of the Act pertaining to this appeal are sections 593, 601 and 626. So far as they are here relevant these sections provide:
"593(1).
Subject to sections 596, 596A, 597 and 598, a person is qualified for a Newstart allowance in respect of a period if:
…
(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 taking reasonable steps to comply with the terms of the agreement; and
…
593 (2A)
For the purposes of paragraph (1)(f)… a person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement unless the person has failed to comply with the terms of the agreement and:
(a) the main reason for failing to comply involved a matter that was within the person's control; or
(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person.
601
…
(4) A person also satisfies the activity test in respect of a period if, throughout the period, the person is taking reasonable steps to comply with the terms of a Newstart Activity Agreement between the Secretary and the person.
(5) If a person fails to take reasonable steps to comply, throughout a period, with the terms of a Newstart Activity Agreement between the Secretary and the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1).
(6) For the purposes of this section, a person takes reasonable steps to comply with a notice under subsection (1A), with a requirement of the Secretary under subsection (2), or with the terms of a Newstart Activity Agreement (as the case requires) unless the person has failed so to comply and:
(a) the main reason for failing to comply involved a matter that was within the person's control; or
(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person.

…
626 – Activity test penalties for failure to comply with Newstart activity agreement.
(1) Subject to subsection (2), if:
(a) a person is required to take reasonable steps to comply with the terms of a Newstart Activity Agreement in order to qualify, or to continue to qualify, for a newstart allowance; and
(b) the person fails to take reasonable steps to comply with the terms of the Newstart Activity Agreement (the failure);
a newstart allowance is not payable to the person because of the failure".

THE FACTUAL SITUATION

The parties in this application were not in agreement as to many of the facts pertaining to the circumstances of the association between the Applicant and IPC. Allegations were made on behalf of the Respondent that the Applicant had been rude and abusive towards members of the staff of IPC and had shown little interest in becoming involved in the intensive assistance program. On the other hand the Applicant contended that he was treated in an off-handed fashion, that his word was not accepted and that he was called a "liar" and that undue pressure was placed upon him to sign the relevant agreement.
It was contended by the Applicant that IPC and Mr Petrovski adopted a position of being unwilling to admit mistakes and hence being defensive in their attitude towards him. On behalf of the Respondent it was said that the Applicant was not seriously looking for work and was seeking to avail himself of the beneficial provisions of the Act without wishing to comply with responsibilities imposed upon him.
It is clear from the evidence that relations between the Applicant and employees of IPC were fragile if not at times torrid but as the Tribunal sees the situation it is not necessary for it to enter into the fray and make findings in respect of all of the contentious factual issues in order to reach a final determination in this matter.
However where it is necessary to make such findings they appear hereunder.
The Applicant had been out of Australia for a period of five years prior to his lodging a claim for Newstart allowance (that is a claim for income support while looking for work as a "welder, engineering type labourer in that field") on 25 February 1999 and job network assistance on 2 March 1999. He was then 35 years of age having been born in Cyprus on 12 June 1963.
The procedure then required in order for him to obtain employment assistance under the Act was different to that which he had experienced when he was in Australia in 1994. He said that he was "bewildered by the new system" having in times gone past dealt with the Commonwealth Employment Service and the Department of Social Security. He found, so he said, that under the current system he was being breached without understanding the reason.
Having lodged his claims in February and March 1999 the Applicant then entered upon the requisite program. The latter entailed his being issued with a job seeker diary on 3 March 1999 at which time he signed a form by which he agreed to approach at least 8 employers a fortnight and to record this in the job seeker diary. It was noted that he had obligations as detailed and that breaches would occur if he should fail to attend an interview with Centrelink or a Job Network Member and other designated events. The nature of the penalties that might arise consequent on a breach was also noted. In the document signed by the Applicant on 3 March1999 (T45) it is stated:
"…
I am aware that I am required to produce the job seeker diary when requested by Centrelink. If I lose or cannot locate the diary I must contact Centrelink immediately to arrange a replacement diary.
I have been advised that if I fail to produce the job seeker diary when requested or cannot produce other evidence that I have completed the agreed number of job contacts my payment may be rejected or cancelled. A breach penalty may also be applied.
The activity test has been explained to me and I am aware of my obligations and responsibilities under the activity test. I have been given a copy of 'Activity test – what you need to do'.
…"

In a review form lodged on 19 May 1999 the Applicant in answer to a question "what help do you need to give you a better chance of getting and keeping a job", answered "money and plenty of it". It was contended that the Applicant had failed to satisfactorily maintain his diary and on 14 July 1999 the Applicant in a statement appealing against this contention said:
"I am appealing because I am being unjustly penalised through not being fully explained that I could lose (2c) twenty percent of the allowance through lack of seminars, officer's knowledge as I was not clearly told that I had to fully complete the diary"

A case note made at the time (T55) records:
"a/n [the Applicant] attended office to appeal against breach imposed for unsatisfactory diary. a/n states that he was never told that if he did not complete diary his pay would reduce. Section in diary indicates this and also he attended seminar where obligations were covered. He also states he has personal issues which prevent him form looking for work but he declined to provide any further info other than he is suing the Federal Government and has the local Mayor and health inspectors involved. He refused to speak to the ODM so an ARO spoke to him. He advised he will provide all evidence to the ARO when it goes to court. I explained the appeal process and he said the system was wrong and he insisted on it going to court. I explained we would then make a decision on the basis of the information he has provided, if he disagrees it will got to the SSAT if he wants it to. He advised his sister is a top lawyer and when he is finished with the Federal Government he will be back to deal with Centrelink. I have no additional information to alter the decision and Mr Lazarou will not provide me anything further. He declined a social work appointment to assist with personal problems. He left the office telling me to forget the whole thing but not to lose the appeal as he would be back to pursue the matter late. In this case I consider that Mr Lazarou has lodged an appeal that has no additional information he is willing to provide at this stage.
…"

IPC was nominated as the Job Network member designated to provide intensive job seeking assistance to the Applicant and on 12 July 1999 an appointment was made with the Applicant for him to attend the office of IPC and after negotiation sign a Newstart activity agreement. An agreement was not then signed. It was contended by the Respondent, as has already been mentioned, that the Applicant had not satisfactorily maintained his job seeker diary and that he had requested review of the decision made to impose a breach upon him on that account. In a case note made that day by IPC it is noted:
"He did not sign the agreement b/c [because] he said he has never signed anything in his life and did not want to sign b/c then it would place him in a difficult situation and that was when he mentioned that he will not sign, but he … b/c it would not stand in court.
B/c client would not sign the agreement, I arranged another appointment for him to attend on 29 July 1999."

On 29 July 1999 the Applicant attended the office of IPC. Client notes made referable to that day inter alia state:
"Lazaros attended…unemployed for over 20 years. Cannot work b/c of chronic insomnia. Was overseas for four and a half years he is planning to go overseas at the end of the year indefinitely. Client feels like he is suffering from depression. Been back in Australia for 5 months…we negotiated the terms of the Newstart activity agreement. Lazaros was explained his rights and obligations. Lazaros agreed to attend jobs search every Thursday at 11am. Lazaros also agreed to assess and review his progress with intensive assistance every Thursday at 11am. Contact provider… asked to do so in person. Lazaros also agreed to see Susan Trevallian (Occpsy) on 17 August 1999. During the interview with Lazaros he would constantly talk about his personal issues that were in no way related to jobs searching. He would constantly bring up that he feels Australia is not a democracy, would want to argue that point. Lazaros said that he does not want a job b/c he is only in Australia until the end of the year so that he can see the firework for year 2000 celebrations".

In his evidence before the Tribunal the Applicant denied that he had contended that Australia was not a democracy and that he did not want a job. Mr Petrovski noted at the time "this person seems like he chooses not to work. He constantly talked about the health he is experiencing due to renovations on his house. He claims to have health problems but cannot provide doctors certificates to prove this…"

The terms of a Newstart activity agreement were however agreed upon, the relevant document being signed by the Applicant and Mr Petrovski on behalf of IPC. On the following day the agreement was approved by a delegate of the Respondent. The agreement and annexes to it so far as here relevant provide:
"…
the aim of this agreement is to help the job-seeker get a job. This agreement and each of it's terms are required to be negotiated between the job network member who is providing intensive assistance and the job-seeker in each case
…
YOUR OBLIGATIONS
Under the Social Security Act 1991 you must take reasonable steps to comply with the terms of this agreement. Failure to do so may result in your allowance being stopped. Your allowance may then not be paid for a period or be reduced for a period.
YOUR RIGHTS
…
[Mention was then made of the manner in which complaints could be made known as also were avenues of reference and appeal]…
I acknowledge that the terms of this agreement have been negotiated between the job network member and myself, I agree to carry out the activities that are listed on the attached schedules. I also understand that:
…
(c) If I do not accept a suitable job offer my allowance may be reduced or stopped for a period of time and my participation in intensive assistance may be cancelled;
(d) If I do not keep to the terms of this agreement my allowance may be reduced or stopped for a period of time and my participation in intensive assistance may be cancelled;
…"

The schedule of agreed activities attached to the agreement provided:

"Every Thursday at 11am
On a regular basis attend and fully participate in interview with provider to review and assess progress with intensive assistance and identify further assistance measures if required.
Every Thursday at 11am
Attend and fully participate in job search interview with provider on request.
…
Tuesday 17 August 1999 at 9.30am
Accept an offer, participate fully and complete job search training with IPC employment.
Thursday 5 July 1999 11am
Accept an offer, participate fully and complete preparing a resume with IPC employment."

The Applicant in the course of his being cross examined before the Tribunal said that he read the Newstart activity agreement before he signed it although he was not able to say that he understood it all. Mr Petrovski "basically explained it to me, the breaches that could happen and that payments could be stopped". The Applicant stated that this was the first contract that he had ever signed and that he felt he could "tear it up" at any time and if he wanted get a new one. He said that he was reluctant to sign the contract having been out of Australia for five years. He denied telling Mr Petrovski that he was not interested in looking for work as he was going overseas. He acknowledged understanding that if he failed to comply with the agreement, payments could be reduced.
On 5 August 1999 the Applicant in accord with the agreement attended the office of IPC for a weekly job search session. The client notes made by Mr Petrovski of IPC record that:
"Lazaros attended job search. Lazaros was assisted in his job search by Rosalie Robinson, Lazaros became extremely uncomfortable when Rosalie began to refer Lazaros to jobs.
Lazaros was not happy. I canvassed on behalf of Lazaros's behalf. I arranged an interview for Lazaros to attend today at any time. Lazaros was extremely unhappy with this and started to become rude and abusive towards Rosalie Robinson. He started to call Rosalie names b/c he became extremely anxious about looking for work.
He said "only one person commands destiny and it is not anyone on this office, the only person is god", "there will always be evil people trying to make you do things you don't want to do". He also said to Rosalie "wait until we meet in heaven then you will see!!!"
The job interview was with Grimes parking. The person he is required to see is called…the position is for a car-washer. Lazaros said he could not afford to travel there so we purchased the train ticket for him."

In her file note of the same day Rosalie Robinson of IPC said that she was engaged in assisting job seekers and stated that she:
"…approached several job seekers including Mr Lazarou. I introduced myself to them and asked them to tell me what work they were seeking as I would be assisting them in their searching…Mr Lazarou became very agitated when I said I would help him. During this conversation his voice suddenly raised and he said that Australia used to be a democracy and that I could not just push him into any job. I told him that I would look for suitable work for him. He said that I know nothing and nothing about him so "how did I think I was going to get him a job".
…he said he was too sick anyway to look for work and that he came to IPC because Centrelink forced him.
I told him that if he was too sick to look for work he should get a medical certificate. He said he could get a medical certificate anytime he wanted and Centrelink could not do anything about it. I said that if that was the case that I would voice my concerns to Centrelink and that they may refer him to a Commonwealth medical officer to verify his condition. He then said to me "you'd better watch or you'll get it". I asked Mr Lazarou what exactly he meant by "you'll get it". He did not answer me. I then asked him was he threatening me. He would not answer. I then told him that all threats are taken seriously and become police matters. I told him that IPC would not tolerate job seekers intimidating, harassing or threatening staff just because we are trying to find them a job and again I stressed that these actions will be reported to the police if required.
He then became more difficult and abusive, he stood up and shouted at me "you're pathetic, you're pathetic". I said to Mr Lazarou "I have treated you with respect and dignity and I expect you to treat me the same way". He said "you just treat people like dogs and send them to anything". I told Mr Lazarou that I was not going to argue with him and that I would still be assisting him to get a job…"

The Applicant contended before the Tribunal that having been forced to sign the "contract" he "saw it as biased, I was forced to go to a job I did not want, they focussed on me getting a job regardless".
Even though IPC had been initially informed that there had been a failure by the Applicant to attend for the interview at Grimes Parking and a breach of the agreement was noted the Applicant had in fact attended and the alleged breach was revoked on 31 August 1999.
According to the client notes of IPC of 12 August 1999 the Applicant attended on that day:
"He again was talking about democracy, about his right and so forth. When Lazaros was approached with jobs from the paper and from the Internet he would look uncomfortable with it and complained. I gave Lazaros information about a position and asked him to call. He did, when the employer asked him his age he said "36 but age is not a problem for me as long as the girls are aged between 16 and 40".
…I informed Lazaros that that was an inappropriate thing to say to an employer and not to say it again. Lazaros just laughed it off. By saying this to the employer he was making himself not suitable for employment. Lazaros then started to tell me that he does not have to work b/c he has been fooling the system all of his life. He said he knows all of the tricks and that he has been working cash-in-hand most of life. He said the system is stupid and very easy to get around. He said he worked as a spray painter trade assistant for about 4 years cash-in-hand. He was also getting the benefits.
…He said that social security people are really stupid and he has been fooling them his whole life. He said that this was really easy because he was really smart and everyone else is really stupid…"

It was, according to the Applicant, on 12 August that Mr Petrovski had contended that he had not attended the interview with Grimes Garage. The Applicant maintained that he did so attend. Another interview was arranged for him. However according to the Applicant it was on this day, and while still at the office of IPC, that he "tore up the contract and went down to Centrelink purportedly to complain."
The Applicant was further to the agreement due to attend a job search training interview on 17 August 1999. He did not attend. A case note made by Mr Petrovski following an attendance of the Applicant at the office of IPC on 19 August 1999 states:
"Mr Lazarou attended on 19 August 1999 for his weekly job search. I explained to Mr Lazarou that he has become an inactive job seeker because I had notified Centrelink that he did not attend a job interview that had been arranged. Mr Lazarou was also informed that I will be recommending another breach to Centrelink because he failed to attend his interview for job search training. Mr Lazarou's reason for not attending job search training was "because I did not feel like it!". I informed Mr Lazarou that he was in fact obligated to attend because it was in his Newstart activity agreement…Mr Lazarou said "if anyone in this office can get me a job by the time I leave for overseas in 4 months time I will chop my head off" (saying this while motioning the cutting of his neck). Mr Lazarou also said "I will make a complaint and take you to court because people in this office have something against me and are out to get me". Mr Lazarou then stormed out of the office and said "you people are pissing me off".

In his evidence the Applicant denied attending the office of IPC on 19 August. He said that he did not attend the training because he had torn the contract up and had told Centrelink that he was not going to see anyone at IPC again. He denied using the words "I did not feel like it" and denied the conversation alleged to have then taken place. Indeed he said that by 17 August "I had terminated with IPC weeks before and it was irrelevant to then attend". With regard to the alleged conversation on the earlier date the Applicant denied that he had said he would chop his head off, denied using the words "pissing me off" and contended that the client notes were generally fabricated. He further denies abusing Ms Robinson and using words to the effect "you will get it". He alleged that the record maintained by Ms Robinson was also a fabrication. He denies ever being rude or harassing or threatening the staff.
The explanation given by the Applicant for not attending the job search training interview was regarded as unsatisfactory by IPC and the Job Search Provider indicated that a breach would be recommended. On 25 August 1999 IPC notified the above failure on the part of the Applicant and recommended a breach be imposed. A delegate of the Respondent imposed a breach on 2 September 1999, the rate of payment to the Applicant being thence reduced. This decision was affirmed by a review officer.
As has already been mentioned the Applicant maintains that he was reluctant to sign the agreement. He alleges he tore up the agreement, denies the conduct alleged, the abuse inflicted and rude language allegedly used. He denies threatening the staff of IPC.
Mr Petrovski was the officer of IPC who apart from Ms Robinson had the relevant dealings with the Applicant. Mr Petrovski said that he was involved with intensive assistance to job seekers and had a caseload of about 100 people seeking employment. He sought to canvass employers and job seekers and if possible arrange for interviews. Interlink had referred the Applicant to IPC for intensive assistance. According to Mr Petrovski the Applicant was from the beginning unwilling to sign an agreement but eventually did so. The Applicant had indicated to Mr Petrovski that the understood his obligations under the agreement and that if he did not comply with them payment could be reduced.
It is apparent from the evidence that the Applicant was not a willing participant in the procedure that was put in place in aid of the job search program. He was diffident about entering into an agreement and indeed resisted signing the agreement until 29 July. There is as has already been mentioned in these reasons issue between the Applicant, Mr Petrovski and Ms Robinson as to the events that occurred at the office of IPC and statements there made particularly by the Applicant. Both Mr Petrovski and Ms Robinson made notes of what had taken place and what had been said. The notes were, according to the authors, made shortly after the occurrence of the events there recorded.
It is apparent from the evidence that he Applicant was not pleased with the new procedure the same being different to the one he had come to know some five years before. He may well have been frustrated by his inability to obtain appropriate benefits. The Tribunal sees no reason advanced by the Applicant as to why it should not accept the evidence of Mr Petrovski and Ms Robinson more particularly as their oral evidence is corroborated by the notes caused to be made by each of them. Indeed having in mind the task assumed by employees of IPC the Tribunal sees no reason why they should fabricate notations made. Where there is issue between the Applicant, Mr Petrovski and Ms Robinson the Tribunal prefers the evidence of Mr Petrovski and Ms Robinson.
SUBMISSIONS AND DECISION
The Social Security Appeals Tribunal in it's reasons for decision inter alia stated:
"12. It is clear that Mr Lazarou failed to comply with the terms of his agreement in that he did not attend at IPC employment for a job search training interview on 17 August 1999. Having considered Mr Lazarou's explanation for his failure to attend the Tribunal concludes that the non-compliance with the agreement was entirely within Mr Lazarou's control. Mr Lazarou made a conscious decision not to return to IPC and thus not to continue compliance with the agreement. There is no question of circumstances beyond Mr Lazarou's control preventing him from complying."

The Tribunal concurs with the finding so made by the Social Security Appeals Tribunal. This Tribunal is satisfied on the whole of the evidence that the decision of the Respondent to reduce the Applicant's rate of Newstart allowance due to his failure to comply with the Newstart activity agreement was correct and justified in the circumstances as they then existed. The Applicant did not take reasonable steps to comply with the agreement which he had entered into and the reason for his failure to comply was within his control. He maintained that he had torn up the agreement on 12 August. The Applicant was required to attend a job interview for job search training on 17 August 1999 but for whatever reason failed to appear. The Tribunal is satisfied that the Applicant did attend the IPC employment office on 19 August and did on that day explain his non-attendance on 17 August by saying that he "did not feel like it", that is, attending.
The Applicant entered into the agreement and as a consequence was to derive a benefit by way of receiving social security payments. He was to assume obligations under the agreement included amongst which was the necessity to attend at the office of IPC. In not so attending and indeed as a consequence of the tearing up of his agreement he cast aside his responsibilities under it and failed to comply with it.
It was contended on behalf of the Respondent that the Applicant did not have an intention even initially to comply with the agreement. He reluctantly signed it on 29 July after failing to do so on an earlier occasion. He had stated that he had never signed anything in his life and that he did not want a job because he was only in Australia until the end of the year and in order to see the year 2000 celebrations. The Applicant also alleged that he had "fooled the system", had obtained social security while in receipt of a wage and that he had no regard for the social security system. He said, "it is stupid and very easy to get around". It was further contended that the conduct and behaviour of the Applicant clearly demonstrated an unwillingness to find a job and participate in the intensive assistance program. His failure to meet the terms of the agreement were within his control and it was reasonably foreseeable that this failure would result in a breach.
Accepting the evidence of Mr Petrovski in preference to that of the Applicant the Tribunal is satisfied that the Applicant did demonstrate an unwillingness to seek employment and comply with the terms of the agreement that he had signed. The totality of the Applicant's conduct prior to 17 August included amongst which was his lack of willingness to sign an agreement, his conduct and behaviour at the office of IPC and his treatment of the employees who were there endeavouring to assist him and his non-compliance with the agreement are all supportive of the action taken by the Respondent.
The purport and intent of the legislation is to assist persons to obtain employment. The program is not open-ended and imposes obligations upon each of the parties. On the one hand the person seeking employment is to comply with requirements to attend for training and to attend at interviews, the other party to provide appropriate facilities and assistance. In the absence of participation by each party in the purport and intent of the agreement the whole job assistance program will be negated. In this matter the Applicant clearly demonstrated an unwillingness to comply with the agreement and his attitude to the performance of his obligations under it was lacking.
As has earlier been indicated section 593(1)(b) of the Act stipulates that a person be qualified for a Newstart allowance if that person satisfies the activity test. It is by reason of the person not satisfying the activity test that pursuant to section 601(5) that person is not qualified for the allowance. The consequence of a person not being qualified is stipulated in other provisions of the legislation.
The Tribunal is satisfied that the Applicant was involved in an intensive assistance program provided by IPC employment recognised as a labour market program under section 601 if the Act. He was required to participate in an intensive assistance program to satisfy the activity test. The Applicant failed to comply with the terms of his agreement and thereby became subject to an activity test penalty.
For the reasons herein before set forth the Tribunal is satisfied that the decision under review is the correct and preferable decision. The decision under review is accordingly affirmed.
I certify that the preceding 41 paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed:         .....................................................................................
  Associate
Dates of Hearing  21 August 2000
Date of Decision  18 October 2000
Representative for the Applicant    Applicant was self-represented
Advocate for the Respondent        George Lozynsky

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Lazarou and Secretary, Department of Family and Community Services [2000] AATA 911

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