LINDSAY TILLEY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 950
•11 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 950
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1368
GENERAL ADMINISTRATIVE DIVISION ) Re LINDSAY TILLEY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date11 December 2009
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes its decision that the applicant has not committed three participation failures within a twelve month period to 4 August 2008.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – Newstart participation failures – failure to comply with Newstart Activity Agreement – failure to attend appointment with job network member – whether notification of appointment included “compliance warning” – failure to enter into new Newstart Activity Agreement – cancellation of Newstart Allowance – applicant had reasonable excuse for participation failure – decision set aside
Social Security Act 1991 ss 593, 601, 605, 606, 624 and 629
Social Security (Administration) Act 1999 ss 63, 64 and 80Social Security (Reasonable Excuse) (DEWR) Determination 2006 s 4
Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988
Re Secretary, Department of Employment and Workplace Relations and Vatarescu [2007] AATA 1717
Re Dunn and Secretary, Department of Family and Community Services (2004) 80 ALD 701REASONS FOR DECISION
December 2009 Senior Member R W Dunne introduction
1. In this matter, the applicant is Mr Lindsay Tilley who has been receiving Newstart Allowance (“NSA”) since 18 October 2007. Prior to that date he had been receiving NSA from 28 September 1998 to 5 May 2007. His job network member is Status Employment Services (“Status”). On 18 January 2008, he developed an Activity Agreement with Status under the Social Security Act 1991 (“SS Act”). On 10 November 2008, a differently constituted Social Security Appeals Tribunal (“Earlier Tribunal”) decided that Mr Tilley had committed participation failures on 11 February 2008 and 14 May 2008. The same Tribunal decided that he had not committed a participation failure on 27 June 2008. On 4 August 2008, the respondent (“Centrelink”) applied a participation failure against Mr Tilley’s NSA. A decision was made by a Centrelink officer and affirmed by an Authorised Review Officer that an eight week non-participation period applied to Mr Tilley’s NSA due to participation failures on 11 February 2008, 14 May 2008 and 4 August 2008, falling within a 12 month period. It was also decided that he did not have a reasonable excuse for the participation failure on 4 August 2008. At Mr Tilley’s request, the decision by the Authorised Review Officer was reviewed and affirmed by the Social Security Appeals Tribunal (“SSAT”) on 4 March 2009. Mr Tilley has applied to this Tribunal for review of the decision of the SSAT.
2. At the hearing, Mr Tilley represented himself and Centrelink was represented by Ms Julie Okmasich (from Centrelink Legal Services and Procurement Branch). The Tribunal received into evidence the T documents (Exhibit R1) and the supplementary T documents (Exhibit R2) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the documents of the applicant (Exhibit A1).
issues for the tribunal
3. The issues for the Tribunal’s consideration are:
(a)Did the applicant commit Newstart participation failures on 11 February 2008, 14 May 2008 and 4 August 2008?
(b)If the applicant did commit such failures, did he have a reasonable excuse for all or any of the failures?
(c)Should an eight week non-payment period be applied to cancel the applicant’s NSA?
legislation
4. Section 593 of the SS Act sets out the criteria for qualification for NSA. It provides relevantly:
“593 Qualification for newstart allowance
(1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a newstart allowance in respect of a period if:
(a) the person satisfies the Secretary that:
(i) throughout the period the person is unemployed; or
...
(b) in the case of a person to whom subparagraph (a)(i) applies—throughout the period, or for each period within the period, the person:
(i) satisfies the activity test; or
..”
5. Section 601 of the SS Act provides for when a person satisfies the activity test, and relevantly reads as follows:
“601 Activity Test
(1) Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
(a) actively seeking; and
(b) willing to undertake;
paid work in Australia, other than paid work that is unsuitable to be undertaken by that person.
...
(4) A person also satisfies the activity test in respect of a period if, throughout the period, the person is complying with the terms of a Newstart Activity Agreement between the Secretary and the person.
(5) If a person fails 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. Section 605 of the SS Act states what a Newstart Activity Agreement is and when persons are required to enter into such Agreements. It provides relevantly as follows:
“605Newstart Activity Agreements—requirement
(1)Subject to this section, the Secretary may require a person who is not a party to a Newstart Activity Agreement to enter into such an agreement if:
(a) the person is receiving, or has made a claim for, a newstart allowance; or;
...
(4) A Newstart Activity Agreement is a written agreement in a form approved by the Secretary. The agreement is between the person and the Secretary.”
7. Section 606 of the SS Act sets out the terms that can be included in Newstart Activity Agreements. It provides relevantly as follows:
“606 Newstart Activity Agreements—terms
(1) Subject to sections 607 to 607B, a Newstart Activity Agreement with a person is to require the person to undertake one or more activities that the Secretary regards as suitable for the person.
...
(2) The terms of an agreement, which include the specification of the activities that the person is to be required to undertake, are to be approved by the Secretary.
...”
The section goes on to provide that the Secretary must have regard to the person’s capacity to comply with the proposed Agreement and to the person’s needs, and lists a series of non-inclusive factors that the Secretary is to take into account, such as the person’s education, experience, skills and age, physical or mental condition, the state of the labour market and a number of other relevant considerations. The section provides that such agreements must not contain certain requirements, but that proscription is not relevant to the present proceedings. Provision is also made in s 606(5) for the Agreement to be varied by negotiation, suspended or cancelled.
8. Section 624 of the SS Act provides for circumstances in which a person commits a Newstart participation failure. It includes reference to a section in the Social Security (Administration) Act 1999 (“Administration Act”) that is relevant to the present matter, namely s 64(4), whereby persons receiving benefits can be notified that they are required to undertake a specified activity, or to attend at a particular place for a particular purpose. Section 624 also provides for what must be included in the notification. Section 624(1) relevantly reads as follows:
“624 Newstart participation failures
(1) A person commits a newstart participation failure if the person:
(a)fails to comply with a requirement:
(i) that was notified to the person under subsection 63(2) or 64(2) of the Administration Act; and
(ii) that was reasonable; and
(iii) the notification of which included a statement to the effect that a failure to comply with the requirement could constitute a newstart participation failure; or
...
(c)fails to comply with a requirement to enter into a Newstart Activity Agreement; or
(d)fails to comply with a term of a Newstart Activity Agreement between the Secretary and the person; or
(e)fails to attend a job interview; or
...”
9. Section 624(1) is ameliorated by s 624(2), which provides in effect that a failure of the kind referred to in s 624(1) is not a Newstart participation failure if the person satisfies the Secretary that the person had a reasonable excuse for the failure. Under s 624(2A), the Secretary must, by legislative instrument, determine matters that the Secretary must take into account in deciding whether, for the purposes of s 624(2), a person had a reasonable excuse for committing a Newstart participation failure. Under s 624(2B) such a determination does not limit the matters that the Secretary may take into account in deciding whether, for the purposes of s 624(2), a person had a reasonable excuse for committing a Newstart participation failure.
10. The Secretary has made a legislative instrument in accordance with s 624(2A) of the SS Act, namely the Social Security (Reasonable Excuse) (DEWR) Determination 2006 dated 3 February 2006 (“Determination”). Section 4(2) of the Determination lists a number of matters that the Secretary must take into account. Section 4(3) of the Determination provides that the preceding subsections do not apply “unless the Secretary is satisfied that the matter had a significant effect on the person’s capacity to comply with the requirement or the provision of the Act to which the failure or refusal relates”.
11. By virtue of s 629 of the SS Act, NSA is not payable to a person where there are repeated participation failures. This section provides relevantly as follows:
“629 Allowance not payable because of repeated or more serious failure
(1)A newstart allowance is not payable to a person, for the period of 8 weeks starting in accordance with section 630, if the person:
(a) commits a newstart participation failure (the repeated failure), having committed newstart participation failures (the earlier failures) on 2 or more other occasions during the period of 12 months preceding that failure; or
...
(2) For the purposes of paragraph (1)(a), disregard any earlier failure that is a failure to which subsection 626(1) does not apply because of subsection 626(2).
(3) Subsection (1) does not apply in relation to the repeated failure if the Secretary is for any other reason satisfied that subsection (1) should not apply to the failure.
…”
12. As appears from s 624(1)(a)(i), which is referred to in paragraph 8 above, a Newstart participation failure is committed if a person fails to comply with a requirement that was notified to him or her under ss 63(2) or 64(2) of the Administration Act. Section 64(2) of the Administration Act is relevant to the present matter. That section provides relevantly, in effect, that if the Secretary is of the opinion that a person receiving certain benefits, including NSA, should attend a particular place for a particular purpose, the Secretary has a discretion to notify the person that he or she is required, within a specified time, to attend that place for that purpose. Under s 64(3), the Secretary may notify a person for the purposes of s 64(2) by sending the notice by prepaid post addressed to the person at his or her last known postal address, but that does not prevent the giving of notice in any other way.
13. Like s 624(1) of the SS Act, s 64 of the Administration Act also includes provision for what must be included in a notification by the Secretary. Section 64(5) provides:
“64 Requirement to undergo medical examination etc.
…
(5) A notification under subsection (2) must inform the person to whom it is given of the effect of this section.”
14. Under s 64(4), if the requisite notification has been given, the person concerned does not take reasonable steps to comply with the requirement of the notice, and the decision-maker is satisfied that it is reasonable for the section to apply to the person, the payment that the person is receiving is not payable. Section 64(4) provides as follows:
“64 Requirement to undergo medical examination etc.
…
(4) If:
(a) the Secretary notifies a person under subsection (2); and
(b) the Secretary is satisfied that it is reasonable for this section to apply to the person; and
(c) the person does not take reasonable steps to comply with the requirement of the notice;
the payment that the person is receiving or has claimed is not payable.”
15. Section 80 of the Administration Act also provides for the cancellation of a social security payment where the Secretary is satisfied that a person is not, or was not, qualified for the payment. It provides as follows:
“80 Cancellation or suspension determination
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.”
background
16. Mr Tilley is 54 years of age. In April 2005, when he was 50 years old and in receipt of NSA, he was given the option by Centrelink to undertake voluntary work. In July 2006, the Centrelink rules were changed and he returned to Status. He was required to attend job search workshops at Status every Monday and Wednesday from 3:00 to 4:00pm. In May 2007, he was told that he would be required to attend job search workshops three days a week for an hour each day and would have to sign a new Activity Agreement to that effect. He refused and for the next five months remained out of the system and lived on monies that had been gifted to him by his mother.
17. In October 2007, Mr Tilley reconnected to NSA and returned to Status. He was once again required by Status to attend job search workshops. Under the terms of the Activity Agreement he entered into with Status on 18 January 2008, he was required to “Attend job search workshop each Monday and Wednesday from 3-4pm from 18/01/2008 to 18/07/2008”. He did not attend the job search workshop on 11 February 2008. When contacted by Status about his non-attendance, he stated that he had been in Mount Gambier for his mother’s 80th birthday. On 14 February 2008, a participation failure was applied against his NSA for failing to comply with the Activity Agreement. In the following week he was called in to Status and told to sign a new Activity Agreement, which included a requirement that he attend job search workshops on Monday, Wednesday and Friday from 3:00 to 4:00pm each day. He refused to sign the Agreement. In March 2008 he was presented with another Activity Agreement by Status which required him to attend job search workshops on Monday, Wednesday and Friday for two hours each day. He again refused to sign the Agreement.
18. Through April and early May Mr Tilley was presented with other Activity Agreements that he refused to sign. On 13 May 2008, he refused again to sign an Activity Agreement that included the requirement that he attend job search workshops three days each week for two hours each day. At the time, he was told that, as he would not sign the Agreement, an appointment would be made for him to attend Status for two hours the following day for the purpose of job search training. He told Status that he would not attend the appointment. On 22 May 2008, a participation failure was applied against his NSA for failing to attend the appointment. In June 2008 Mr Tilley was given other Activity Agreements with a similar clause requiring attendance at job search workshops three days each week for one hour each day. He signed an Agreement, but deleted the clause requiring attendance at job search workshops three hours a week. On 27 June 2008, a participation failure was applied to his NSA. However, on 10 November 2008 this failure was set aside by the Earlier Tribunal. After the invalid participation failure on 27 June 2008, Mr Tilley attended an appointment at Status on 29 July 2008. He had previously been advised that the appointment was for him to enter into an Activity Agreement. He did not enter into the Agreement on that day, but it was given to him to take away to reconsider his decision. On 4 August 2008, he attended Status but did not enter into the Agreement in the form required by Status. On 19 August 2008, a participation failure was applied to his NSA for failing to enter into the Activity Agreement.
evidence of applicant
19. It was Mr Tilley’s evidence that, after he returned to Status in July 1996, he complained about the job search workshops because there was no-one there to help him. He thought he had better facilities at home to do job search activities, and significant time and cost were involved in attending the workshops. He said that, when problems started with Status, the workshops were increased to three one hour workshops a week and then to three two hour workshops a week. Status also threatened to increase the workshops to ten hours a week, five workshops for two hours each day. He claimed that Status was forcing him to do job search workshops three times a week to make the conditions of the Activity Agreements so onerous that he would leave and, in doing so, “they were acting maliciously towards me”. He said there was no reason to go to another job network organisation. He believed that any other organisation was likely to be very similar. A move to a new job network organisation would involve more appointments, more paperwork and more bureaucracy.
Participation Failure on 11 February 2008
20. Mr Tilley’s mother turned 80 on 5 February 2008 and a family celebration had been organised for her in Mount Gambier, where she lived, the following Saturday, 9 February 2008. He attended the celebration and, because of the cost involved, he wanted to stay in Mount Gambier for a few days. He drove there on Thursday, 7 February and planned to drive back to Adelaide on Monday, 11 February, to arrive in time to attend the job search workshop that day at 3:00pm. He left Mount Gambier at about 8:30am on 11 February, allowing five hours to arrive back in Adelaide. However, he had his pet dog with him and it was a hot day. The animal became distressed and he found it necessary to stop several times to allow it to recover. This took a considerable amount of time and he did not arrive home until about 6:00pm. He said he was not concerned about missing the job search workshop on 11 February, believing he could contact Status within 24 hours and arrange to come in at another time to make up the workshop. He sought support for his belief from an extract from an Incident Investigation Summary relating to him (Exhibit A1, page BA) which read:
“Of the date and time of the appointment and that they are required to attend this appointment. If they can’t attend at this time they are required to contact the provider to reschedule the appointment as soon as they are able to after they become aware they cannot attend. If they don’t attend or make other arrangements, their payment may stop and may not restart until they do attend and they may get another participation failure. Three or more participation failures in a twelve month period may mean their payment is stopped for eight weeks. They may lose $31.22 per day if they do not successfully re-engage.”
However, when he contacted Status on 12 February 2008, he was told that Centrelink had been notified and a participation failure had been applied. In relation to the failure, Mr Tilley said:
“… So in other words, I think I had a reasonable excuse. I think I had attended these job search workshops for the past nine months or so without missing any. So my compliance history was pretty good but none of these issues were considered before the breach was – according to this, these are issues that need to be considered and I don’t believe they were.” [Transcript, page 32]
21. In cross-examination, Mr Tilley said that it was impractical for him to call Status before his workshop appointment on 11 February 2008. He planned to be back in Adelaide before 3:00pm and saw no need to call before leaving Mount Gambier. He could not call on the Monday because he did not have the telephone number of Status and it did not occur to him to look it up in the directory. In further questioning, he said he did not see a problem beforehand with the return trip. He had driven to Mount Gambier many times and had never experienced a problem.
Participation Failure on 14 May 2008
22. Mr Tilley reiterated that he had been in conflict with Status about the requirement to attend job search workshops three days a week for two hours a day on Monday, Wednesday and Friday. He had previously refused to sign Activity Agreements which included the requirement to attend the workshops for six hours each week. On Monday, 13 May 2008 he attended a scheduled appointment at Status where he was asked to sign an Activity Agreement, which included the same clause requiring him to attend the workshops for six hours each week. He again refused to sign the Agreement. He was then told that, since he would not attend the job search workshops as part of an Activity Agreement, Status would make an appointment for him the following day (14 May 2008). Mr Tilley said that he believed this was done to force him to attend for the purpose of a job search workshop by means other than by an Activity Agreement. He told Status that he would not attend the appointment and he did not do so.
Participation Failure on 4 August 2008
23. Mr Tilley said that, in his time with Status, he had found the people there to be “arrogant, inflexible and unable to copy with the differing needs of their so-called clients”. He had made his views known to Status and had written a number of letters of complaint to Centrelink and others. He believed Status regarded him as a trouble- maker and went out of their way to make it difficult for him. He said they wanted to get rid of him and had used different methods in attempts to do so. On two occasions they had presented him with an unrequested transfer agreement form in an effort to move him to another job network member. He said the circumstances giving rise to the participation failure on 4 August 2008 were similar to those that arose with the participation failure on 27 June 2008 when he refused to sign the Activity Agreement presented to him. In relation to that participation failure, the Earlier Tribunal on 10 November 2008 had concluded that the reasons given by him for refusing to sign the proposed Activity Agreement represented a reasonable excuse in his case. The Activity Agreement presented to Mr Tilley on 29 July 2008 to sign on 4 August 2008 included a clause requiring him to attend job search workshops three times a week.
consideration
Did the applicant commit Newstart participation failures on 11 February 2008, 14 May 2008 and 4 August 2008?
24. The Tribunal found Mr Tilley to be a truthful witness and he argued his case in a forceful manner. He acknowledged that he failed to attend the job search workshop on 11 February 2008, he failed to attend the appointment with Status on 14 May 2008 and he failed to enter into the Activity Agreement required by Status on 4 August 2008. He was given a “compliance warning” in accordance with s 624(1)(a) of the SS Act, when read with s 63(2) of the Administration Act, and on each of the occasions he was aware that his failure amounted to or would amount to a participation failure. The Tribunal is satisfied that Mr Tilley committed the asserted participation failures on 11 February 2008, 14 May 2008 and 4 August 2008 under s 624(1)(c), s 624(1)(d) or s 624(1)(e) of the SS Act.
If the applicant did commit such failures, did he have a reasonable excuse for all or any of the failures?
Participation Failure on 11 February 2008
25. In its decision on 10 November 2008, the Earlier Tribunal found that Mr Tilley had committed a participation failure, under s 624(1)(d) of the SS Act, with respect to his failure to attend the job search workshop on 11 February 2008. By inference, the SSAT found that he did not have a reasonable excuse for the failure under s 624(2). The same findings were effectively made by the SSAT in its decision on 4 March 2009. Before the Tribunal, Mr Tilley’s evidence was that, following attendance at a celebration in Mount Gambier for his mother’s 80th birthday, on 11 February 2008 he was unavoidably delayed in returning to Adelaide and arrived too late to attend the job search workshop scheduled for 3:00pm that day. He said that, as he had made the trip on previous occasions, he did not find it necessary to contact Status before leaving for Mount Gambier to warn of a possible delay. He did not find it possible to contact Status on 11 February 2008 itself as he did not have their telephone number and, with the problems with his dog on that day, it did not occur to him try to search for their contact details. He believed he had a “reasonable excuse” (vide s 624(2) of the SS Act) for the delay and that he could contact Status on 12 February 2008 to arrange another date for an alternative workshop. He had attended the workshops for the past nine months without missing any and felt he had a good compliance history that would enable an alternative workshop to be arranged.
26. Section 624(2A) of the SS Act provides that the Secretary (and, upon review, the Tribunal) must, by means of the Determination, determine matters that must be taken into account in deciding whether, for the purposes of s 624(2), a person had a reasonable excuse for committing a participation failure. However, s 624(2A) does not limit the matters that may be taken into account in deciding whether a person had a reasonable excuse for the participation failure (see s 624(2B)). Ms Okmasich submitted that there was not sufficient evidence to support Mr Tilley’s contention that he had contacted Status to arrange an alternative job search workshop. Mr Tilley’s evidence was that he did contact Status on 12 February 2008 to arrange an alternative, but a participation failure had already been recorded against him. The Tribunal has no reason to doubt this evidence. Given the circumstances, the Tribunal is satisfied, under s 624(2) of the SS Act, that Mr Tilley had a reasonable excuse for the participation failure on 11 February 2008.
Participation Failure on 14 May 2008
27. In its decision on 10 November 2008, the Earlier Tribunal found that Mr Tilley had committed a participation failure, under ss 624(1)(a) and (b) of the SS Act, with respect to his failure to attend the appointment with Status on 14 May 2008. Again, by inference, the SSAT panel found that he did not have a reasonable excuse for the failure under s 624(2). The same findings were effectively made by the SSAT in its decision on 4 March 2009. Under the terms of the Activity Agreement dated 18 January 2008, Mr Tilley was required to attend job search workshops on Monday and Wednesday, for one hour each day. Although he complained about the workshops and believed they were a waste of time, he attended them. However, it became clear from his evidence that he believed the requirement to attend the workshops more than twice a week was unreasonable. He contended that there were no consultants available at the workshops to help him and he had better facilities at home to search for employment opportunities. After refusing to sign an Activity Agreement on 13 May 2008 that included a requirement to attend job search workshops for six hours a week, he told Status that he would not attend an appointment the next day for what he believed to be the same purpose. He was being required to attend an appointment for a job search workshop as part of a six hour project by means other than an Activity Agreement. When asked why he did not attend the appointment, he said:
“At the time I was engaged in a dispute with Status Employment Services about attending job search workshops three times a week. It was my contention then and it still is, that that appointment was made for me attending a job search workshop and I think I have provided proof that that is exactly what they intended …” [Transcript, page 36]
28. When asked whether he believed his approach to the workshops themselves was reasonable, he said:
“Well, I feel I have a right to complain about it. I think I have already made the point that I attended those job search workshops for a total of about nine months and I didn’t miss any. I didn’t miss one. It was only when I complained to Status Employment Services about the need to attend those workshops they increased the quota from two hours a week up to six hours a week that I decided that wasn’t reasonable.” [Transcript, page 38]
Later, when asked whether the complaints he made about Status meant that he did not see that he was required to meet the obligations of a Newstart recipient, he said:
“It depends what the obligations are and it depends if those obligations are forced on the client because of an attitude that the job network organisation has towards them. …” [Transcript, page 39]
29. Was the excuse given by Mr Tilley for not attending the appointment with Status on 14 May 2008 a reasonable one? In Secretary, Department of Employment and Workplace Relations v Real [2007] FCA 988, Kiefel J considered the question of reasonable notice under s 63(9) of the Administration Act. At paragraph 6, she observed:
“… The question posed by the section, properly understood, required the Tribunal to consider the respondent’s state of mind in relation to attendance at the interview. It is directed to the reason the respondent had at that time and not what the Tribunal later finds could have provided an excuse. The applicant’s argument may state the question for the Tribunal rather broadly. It is, however, correct to observe that the discretion given to the Tribunal is circumscribed. It is not whether the Tribunal considers that, in all the circumstances, the respondent should be excused. It is whether the Tribunal is satisfied about the reason proffered by him which justifies his non-compliance with the notice. …”
30. The question of reasonableness was also considered by Member S Webb in Re Secretary, Department of Employment and Workplace Relations and Vatarescu [2007] AATA 1717. In that case, Dr Vatarescu failed to attend an appointment with his job network member to renegotiate a new Activity Agreement. His stated reasons for failing to comply with the notice to attend the appointment were that his job network member failed to provide a satisfactory level of employment service and, after the period of 20 months without one job referral, his future participation in a further Activity Agreement involving the job network member would be futile and may potentially render him complicit in a fraud against the Commonwealth. At paragraph 20, Member Webb said:
“The test of reasonableness is an objective one that applies to the personal reason of the person for failing to comply at the time. It is not for the Tribunal to assess the circumstances at large and, with the value of hindsight, provide a reason (Telstra Corporation Ltd v Administrative Appeals Tribunal & Anor [2003]; Secretary, Department of Employment and Workplace Relations v Real [2007]).”
31. It was apparent that Mr Tilley believed Activity Agreements and the obligations under them were meant to be negotiated. A similar argument was adopted by the applicant before Member Ms N Bell in Re Dunn and Secretary, Department of Family and Community Services (2004) 80 ALD 701 when she said (at paragraph 28):
“28. I consider that the scope for negotiation of agreements is first determined by the provisions of the Act which, in the first instance, in s 604, empowers the secretary to require the applicant to enter into an agreement, the terms of which are approved by the secretary. Such a framework cannot support the contention that the negotiating power of each of the parties to the agreement is equal. The secretary clearly has a greater negotiating power.”
32. Although the respondent has a greater negotiating power when entering into Activity Agreements with Newstart recipients, a reasonable balance should be achieved. In response to a Freedom of Information request made to the respondent by Mr Tilley in relation to his affairs, the following extract from an internal Centrelink communication was obtained:
“…
We need to remember that an AA is an “agreement” between a Provider/Centrelink and the customer. If the customer is happy with his current AA and the terms outlined in it and this is considered reasonable, then the JNM would need to have a just and reasonable reason for wanting to update the current terms of his attendance with them.
What are the reasons the JNM is wanting the customer to attend for the extra day? Will it have an increased benefit to the customer achieving an employment outcome? If a JNM is expecting a customer to be at a certain place at a certain time every day, or a number of times throughout the week, this can become very restrictive and not necessarily reasonable or beneficial to a customer.”
33. It was also apparent that Mr Tilley accepted that attendance at job search workshops for two days a week for an hour each day was reasonable. However, when the requirement increased to three days a week for two hours each day and the threat of five days a week for two hours each day, he regarded the requirement to attend the appointment on 14 May 2008 for the purpose of a job search workshop for two hours as unreasonable. Having regard to the evidence before it, the Tribunal is satisfied, under s 624(2) of the SS Act, that Mr Tilley had a reasonable excuse for the participation failure on 14 May 2008.
Participation failure on 4 August 2008
34. In its decision on 4 March 2009, the SSAT noted that the appointment between Mr Tilley and Status on 4 August 2008 was the culmination of Status’ third protracted attempt to get him to enter into the Activity Agreement containing the requirement to attend job search workshops three times a week. The SSAT considered that the requirement was not unreasonable. Mr Tilley had been offered a transfer of job network member to facilitate his job search. The SSAT also noted that Mr Tilley had been provided time to cool off and think about his failure to enter into the Agreement on a number of occasions. Failure to do so hampered the opportunity for him to use the job network member and their facilities to get employment. The Tribunal was satisfied that he had committed a participation failure when he failed to enter into the unamended Activity Agreement on 4 August 2008. Mr Tilley said that the failure was as a result of an ongoing issue and was imposed for the same reason as the participation failure on 27 June 2008, which was overturned by the Earlier Tribunal on 10 November 2008. In his evidence about the Activity Agreement presented to him, Mr Tilley said:
“In June and August I was presented with further activity agreements. By now these had reverted back to demanding I attend job search workshops for three hours a week instead of six. I signed them but deleted this clause and I was still breached.” [Transcript, page 18]
35. When asked why the Earlier Tribunal had decided that there had been no participation failure on 27 June 2008, Mr Tilley said it was because he was being forced to enter into Activity Agreements that included the requirement to attend job search workshops three times a week, and an identical issue had arisen with the participation failure on 4 August 2008. He said the Earlier Tribunal had decided that his refusal to sign the Activity Agreement on 27 June 2008 and, it followed, the Activity Agreement on 4 August 2008, was reasonable. In paragraph 48 of its decision on 10 November 2008, the Earlier Tribunal had this to say:
“48. On the basis of these comments and other comments on the above dates, it would appear that the motivation to increase Mr Tilley’s attendance at job search activities and to include this in a new activity agreement was not to assist him with obtaining employment. The change to his activity agreement as set out in the proposed unamended activity agreement to be signed by Mr Tilley on 27 June 2008 appears to be driven by the need to address other issues such as working for cash.”
It was for this reason that the Earlier Tribunal found that Mr Tilley’s reasons for not signing the Activity Agreement were plausible and represented a reasonable excuse in his case.
36. It is clear, in the Tribunal’s view, the reason why the Earlier Tribunal, in its decision on 10 November 2008, found that Mr Tilley’s refusal to sign the proposed Activity Agreement was reasonable was because the Agreement was not to assist him in obtaining employment, but to address other issues such as working for cash. Those other issues do not arise in the Activity Agreement on 4 August 2008, and this fact was acknowledged by Mr Tilley in his evidence. In its decision on 4 March 2009, the SSAT said (at paragraph 42):
“42. This Tribunal has reached a view that by 4 August 2008 any reasonableness that attached to Mr Tilley’s action to only sign an amended agreement, because the JNM and Centrelink may be requiring him to do so for an ulterior motive, is outweighed by his circumstances with regard to lack of employment. His long term unemployment, his persistent derogation of the JNM and his failure to change JNM along with his failure to engage in job seeking make his failure to enter the Activity Agreement unreasonable. There is no other evidence before the Tribunal that would support a finding that Mr Tilley’s failure to enter the Activity Agreement was caused by a reasonable excuse.”
The Tribunal agrees with the view expressed by the SSAT and is satisfied that Mr Tilley committed a participation failure when he failed to enter into the Activity Agreement on 4 August 2008 and did not have a reasonable excuse for that participation failure.
37. During the hearing, there were a number of complaints by Mr Tilley and allegations by him of mistrust, suspicion and misrepresentation that arose in his relationship with Status. His evidence was that there were severe relationship problems involving malicious reports and false statements. It appears that he may have some ground for his dissatisfaction in relation to the manner in which his complaints have been handled, even though his own record of compliance is not exemplary. The Tribunal did not consider it necessary or appropriate to consider the nature and extent of the relationship problems. Although they were not relevant to the issues before the Tribunal, there seems little doubt that they existed and may still exist. If they do, they should be addressed. When questioned about his job network position, Mr Tilley said that he had done everything in his power to change the situation. He had written to Status, to the respondent and to the Commonwealth Ombudsman, without success. Notwithstanding his apparent view generally about job network members, the Tribunal believes that his movement to a new job network member may be an appropriate and worthwhile solution.
decision
38. The Tribunal sets aside the decision under review and substitutes its decision that the applicant has not committed three participation failures within a twelve month period to 4 August 2008.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard.........................................
AssociateDate of Hearing 22 September 2009
Date of Decision 11 December 2009
Advocate for the Applicant Self-represented
Advocate for the Respondent Ms J OkmasichSolicitor for the Respondent Centrelink Legal Services & Procurement Branch
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