Long and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1716

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1716

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200601212

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		FRANKIE JAMES LONG

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr R. McRae, Member

Date30 August 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) R. McRae

Member

SOCIAL SECURITY ‑ Newstart allowance ‑ activity test ‑ non-payment period ‑ refusal of employment ‑ reasonable excuse ‑ minimum industry award ‑ unsuitable work ‑ breach of agreement

Social Security Act 1991 ss 593, 601(1), (1A), (2A), (5), 629(1)(d), 630(2)

Social Security (Administration) Act 1999 s 196

Social Security (Reasonable Excuse) (DEWR) Determination 2006

Marabouti v Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 53 ALD 585

REASONS FOR DECISION

30 August 2007 Dr R. McRae, Member       

1. Mr Frankie James Long (the Applicant) applied to Centrelink for Newstart Allowance (NSA) on 20 July 2004. Centrelink acts as the service delivery agency for the Secretary to the Department of Employment and Workplace Relations (the Respondent). His claim was accepted, and the Applicant received payments from 27 July 2004. On 27 July 2006 a Centrelink officer wrote to the Applicant advising of the decision to impose an eight week non-payment period from 27 July 2006 to 20 September 2006 because the Applicant refused, without reasonable excuse, to accept a suitable offer of employment and therefore failed to satisfy s 593 of the Social Security Act 1991 (the Act).  On 28 August 2006 a Centrelink Authorised Review Officer (ARO) affirmed the decision.  The Applicant then sought review of the decision by the Social Security Appeals Tribunal (SSAT).  On 30 November 2006 the SSAT affirmed the decision.  The Applicant now seeks a review of the SSAT decision by the Tribunal. 

2.      The issues for the Tribunal are whether the Applicant refused an offer of suitable employment at or above the minimum pay standard; and if so, was the refusal reasonable? 

3.      The Tribunal’s decision is that the Applicant unreasonably failed to accept an offer of suitable employment.  

4. The Applicant was self-represented. The Respondent was represented by Mr Tim De Uray, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents).  

5.      The Respondent called Ms Michelle Todorovich, a case manager with Matchworks, an Employment Services Provider, as a witness.  The witness’s evidence was by telephone.

BACKGROUND

6.      The Applicant is a 37-year old unemployed, single, Australian man, who lives alone in rented accommodation in Sunshine.  He has no children, and is competent in English and enjoys good health.  The Applicant claimed Jobstart Allowance on 26 June 1991.  Some two years ago he ceased employment with Bunnings’ Melbourne outlet after some eight and a half years sales work experience, including controlling stock.  He selected Matchworks as the organization to assist him to obtain employment.  His case manager was Ms Todorovich.

7. Ms Rebecca Keith is a business development officer employed by Matchworks. She became aware of an employment opportunity at Borgcraft Pty Ltd in Altona North, offering process work, cutting pastry. The factory was accessible by train. This position was offered to the Applicant on 19 July 2006. On 27 July 2006 a notice was issued to the Applicant due to his failure to take up a suitable position, in accordance with s 196 of the Social Security (Administration) Act 1999 (the s 196 notice).

8.      The award rate of payment for process work is $12.75 per hour ($484.40 per week).  NSA was $532.00 per fortnight.

APPLICANT’S EVIDENCE AND SUBMISSIONS

9.      The Applicant presented what amounted to a combination of evidence and submissions.  He said that the Borgcraft job was either not offered or the offer was withdrawn by Ms Keith.  He stated that he was disappointed with the Borgcraft job offer.  The Applicant considered the position would not be suitable.  It was not interesting work, and he would probably not last long.  It was less money than at Bunnings and his aim was for more money.  The Applicant stated I did accept the job, as I have to or I will be breached.  The Applicant stated that he did not refuse [the employment] rather the job offer was taken away.  The Applicant stated on 19 July 2006 Ms Keith said “This job is withdrawn”.  The Applicant gave no more consideration to the position as he assumed it had been withdrawn. 

10.     Under cross-examination the Applicant agreed that he knows the rules regarding how he can get breached, and it was fair to say [he] knows the system and requirements to be on NSA.  The Applicant was aware of his signed Activity Agreement.  He was keen to make more money than the NSA.  He wanted a simple job, with minimal contact with people.  The Applicant agreed that on 18 July 2006 he nominated process work as being suitable.  He did not want a retail sales position because he wanted a break from retail work.  He agreed he was aware on 19 July 2006 what a breach would entail.  The Applicant conceded he possibly considered he was over-qualified for the position.  He agreed travel [to Borgcraft] was not an issue. 

11.     The Applicant conceded he had over $3,000.00 in Visa credit card debt in July 2006.  He agreed that he had tried to access his accumulated superannuation funds in July 2006, and to do so he would have had to show financial hardship over the previous 12 months.  The Applicant agreed that on 19 July 2006 his application for his superannuation funds was at the forefront of his mind: in one month he could access superannuation and move interstate.  The Applicant agreed that he could not have demonstrated financial hardship if he had had a job. 

12.     The Applicant stated that at a meeting at Matchworks on 26 July 2006 he teased them [Ms Keith and Ms Todorovich] during discussion of the situation of a breach.  The Applicant did not use the meeting on 26 July 2006 to clarify the circumstances around the job offer as [he] had been breached already. The Applicant agreed that he did not request that the breach be removed; nor did he ask for the Borgcraft job back. The Applicant disagreed that the first indication of a breach had been the s196 notice dated 27 July 2006.

Ms Todorovich’s EVIDENCE

13.     Ms Todorovich’s evidence was she had been a case manager for some 12 months.  Her role is to assist unemployed people obtain suitable jobs.  The Applicant’s file was handed to her on about 12 July 2006.  She said that diary entries are usually (90 per cent) made on the day that contact is made with a client.  They are occasionally back-dated.  However, the entries absolutely reflect the events of the day.  Ms Todorovich said that on 18 July 2006 she asked the Applicant if he would be interested in a retail position at the Australian Lighting Company in Sunshine.  The Applicant rejected the offer before she had completed the details of that position.  He only wanted process worker work.  That rejection would ordinarily lead to a claimant being breached, but Ms Todorovich considered that she would give him one [more] go and attempt to obtain process worker work.  She consulted Ms Keith on 18 July 2006, who informed her of the full-time (after a trial period) process worker position at Borgcraft.  She was unable to contact the Applicant, and alerted reception staff to await the Applicant’s arrival on 19 July 2006. 

14.     Ms Todorovich met the Applicant on 19 July 2006, with Ms Keith, who possessed more information about the position.  The Applicant was initially enthusiastic, but his body language and attitude altered when he learned of the $13.00 per hour pay.  He advised he would only work until his “work credits” were up and then leave.  He indicated it would not be worth his while to accept the job.  Ms Todorovich stated that no words like “the job is withdrawn” were said on 19 July 2006.  There was no way anyone could send a potential employee to an employer with knowledge of the Applicant’s attitude.  It was clear the Applicant was not committing to long term employment.  The Applicant was advised on 19 July 2006 that a report would have to be forwarded to Centrelink regarding the breach.  The Applicant left the Matchworks office on 19 July 2006 without finishing the conversation.  Ms Todorovich was unaware of any conversations regarding the Applicant on 21 July 2006.  If she had been, she would have made a file note. 

RESPONDENT’S SUBMISSIONS

15.     The Respondent submitted that the Applicant’s refusal of an offer of employment was in breach of s 629(1)(d) of the Act.  The Respondent submitted that the Applicant was not prepared to undertake retail work.  Matchworks had identified suitable, requested, process work at Borgcraft.  The case manager had explained the nature of the position to the Applicant; and that the job paid $13.00 per hour. ($988.00 per fortnight, compared to NSA of $532.00 per fortnight).  The Respondent submitted that the offer was negatively received.  The Respondent submitted that the Applicant did not pursue the offer, nor complete any paperwork related to the employment.  The Applicant did not request that the breach be withdrawn, nor did he subsequently request the Borgcraft job be given to him. 

LEGISLATION

16. Section 593(1) of the Act sets out the qualifications for NSA and provides:

593(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

(ii)       is not required to satisfy the activity test; and

…

(e)if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and

(f)while the agreement is in force, the person satisfies the Secretary that the person is complying with the terms of the agreement; and

…

17.     Section 601 of the Act provides that a person will satisfy the activity test if the Secretary is satisfied that a person is actively seeking and is willing to undertake paid work, other than work that is unsuitable.  A person will also satisfy the activity test if the person complies with the Secretary’s requirement that the person undertake particular paid work (other than unsuitable work) (s 601(1A) of the Act); and the person complies with the terms of the Newstart Activity Agreement (s 601(5) of the Act). 

18.     Section 601(2A) of the Act provides that work is unsuitable if in the Secretary’s opinion:

(a)the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer; or

(b)it has been established that there is medical evidence that the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; or

(ba)the person is the principal carer for one or more children, and does not have access to appropriate care and supervision for the children at the times when the person would be required to undertake the work; or

…

(c)performing the work in the conditions in which the work would be performed would constitute a risk to health or safety and would contravene a law of the Commonwealth, a State or a Territory relating to occupational health and safety; or

…

(e)the terms and conditions for the work would be less generous than the applicable statutory conditions; or

…

(g)commuting between the person's home and the place of work would be unreasonably difficult; or

(h)the work would require enlistment in the Defence Force or the Reserves; or

(i)the work requires the person to move from a home in a place to a home in another place; or

(j)for any other reason, the work is unsuitable for the person.

19. Section 629(1)(d) of the Act provides that NSA is not payable for 8 weeks if a person has refused or failed, without reasonable excuse, to accept a suitable offer of employment. The Social Security (Reasonable Excuse) (DEWR) Determination 2006 outlines the matters that must be taken into account in deciding whether a person has a reasonable excuse. Some of these include: the person is living in non‑permanent/emergency accommodation; medical conditions that are unpredictable in nature; a lack of literacy and language skills; the person suffers from a cognitive or neurological impairment, a psychiatric or psychological impairment or drug or alcohol dependency; there are unforeseen family or caring responsibilities; and the death of an immediate family member.

20.     Section 630(2) of the Act provides:

If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:

(a)if the failure is the person’s first or second activity test breach in the 2 years immediately before the day after the failure—an activity test breach rate reduction period applies to the person; or

(b)if the failure is the person’s third or subsequent activity test breach in the 2 years immediately before the day after the failure—an activity test non‑payment period applies to the person.

FINDINGS

21.     The Applicant was evasive and contradictory with his answers.  He frequently responded to a question by asking another question, or stating “You tell me”.  He was not forthcoming in his answers to questions relating to the offered retail position at the Australian Lighting Company.  He was unable to clarify if the position under discussion had been offered and withdrawn, or not offered.  He stated that he accepted a job that he was uncertain had been offered.

22.     The Applicant is a recipient of NSA.  He had entered into a Newstart Activity Agreement and is required to satisfy the Activity Test.  He is aware of the obligations associated with NSA.

23.     The evidence is consistent that the Applicant was offered a position as a retail worker at the Australian Lighting Company on 18 July 2006 and as a process worker at Borgcraft Pty Ltd on 19 July 2006. 

24.     The express refusal of the retail position is sufficient as a serious participation failure related to NSA, despite the fact that it was not recorded as a breach at the time. 

25.     The Applicant does not lack the particular skills, including lack of literacy or language skills, experience or qualifications that are needed to undertake work as a process worker at Borgcraft Pty Ltd.  In any case, training was available.  There was no evidence of ill-health, social or religious barriers preventing the Applicant accepting the position at Borgcraft Pty Ltd.  There was no medical evidence that the Applicant had an illness, including a cognitive or psychiatric impairment, a disability or injury that would be aggravated by the conditions in which the work would be performed.  The Applicant is not the principal carer for any children and there was no evidence of any other family-related issue.  There was no evidence that performing the work would constitute a risk to the Applicant’s health or safety or that it would contravene a law of the Commonwealth, a State or Territory, relating to occupational health and safety. 

26.     The award rate for a process worker was $12.75 per hour.  The Applicant was offered a rate of $13.00 per hour.  The offer was in excess of the award rate of payment.  The Applicant’s travel time to Borgcraft Pty Ltd was not in excess of 60 minutes.  There was no evidence to suggest that commuting between the Applicant's home and Borgcraft Pty Ltd would be unreasonably difficult.  The Applicant would not be financially worse off as a result of accepting the employment. 

27.     The Applicant argued that the offer was unsuitable because he was over‑qualified for it.  Following the decision in Marabouti v Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 53 ALD 585, the Tribunal does not accept that the Applicant’s own opinion of the position being beneath his capabilities or interest is a reasonable excuse for the purposes of the Act. There was no evidence that the work was unsuitable for the Applicant. Therefore the offered employment cannot be considered unsuitable.

28.     An intention to access superannuation cannot be considered a reasonable excuse to refuse the offer of suitable employment for the purposes of the Act. 

29.     The Applicant did not provide a positive or unequivocal acceptance of the Borgcraft job offer.  The Applicant made it clear, expressly and through his conduct that he would only remain in the Borgcraft position for one month until the work credits expired.  Due to this behaviour, Ms Todorovich did not send him to the potential employer.  The employment offer was not withdrawn.  The Applicant refused the offer of suitable employment.  He made no effort to pursue any potential opportunity with that employer with staff at Matchworks.  The Applicant had no reasonable excuse to fail to accept the suitable job offer. 

CONCLUSION

30.     The Tribunal concludes the Applicant has not satisfied the activity test. 

31.     The Tribunal concludes that the Applicant has failed, without reasonable excuse to accept a suitable job offer.  Therefore NSA is not payable for eight weeks in accordance with s 629(1)(d) of the Act. 

DECISION

32.     Accordingly, the decision of the Respondent to impose an eight-week non‑payment period of NSA upon the Applicant was the correct decision.  The Tribunal affirms the decision under review.

I certify that the thirty‑two [32] preceding paragraphs are a true copy of the reasons for the decision of:

Dr R. McRae, Member

(sgd)     Olympia Sarrinikolaou

Clerk

Date of Hearing:  30 April 2007

Date of Decision:  30 August 2007

Advocate for the Applicant:               Self‑represented

Advocate for the Respondent:           Mr T. De Uray, Centrelink Legal Services Branch