Marabouti, Pandeli v Department of Employment, Education, Training & Youth Affairs

[1998] FCA 1452

PANDELI MARABOUTI v. DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS and [NO LONGER A PARTY]
No. NG 772 of 1997
FED No. 1452/98
Number of pages - 12
Administrative Law

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

LINDGREN J

Administrative Law - social security - cancellation of newstart allowance - whether applicant should have been notified of intention to cancel allowance - whether failure of decision maker to give applicant an opportunity to be heard "cured" by later reviews by Authorised Review Officer, Social Security Appeals Tribunal and Administrative Appeals Tribunal - whether job offered was "suitable" - whether failure to take into account relevant considerations.

Employment Services Act 1994 (Cth) s 45

Social Security Act 1990 s 601

Twist v Randwick Municipal Council (1976) 136 CLR 106, applied

Preston v Carmody (1993) 44 FCR 1, applied

Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294, applied

Re Wan and Secretary, Department of Social Security (1992) 30 ALD 899, distinguished

Re Bartlett and Secretary, Department of Social Security (1994) 33 ALD 661, distinguished

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied

SYDNEY, 15 August 1998 (hearing), 16 November 1998 (decision)

#DATE 16:11:1998

Counsel for the Applicant: Ms J Keys

Solicitor for the Respondent: Mr G Peek of the Australian Government Solicitor's office

THE COURT ORDERS THAT:

1. The application be dismissed;

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

LINDGREN J

INTRODUCTION

The applicant ("Mr Marabouti) appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") from a decision of the Administrative Appeals Tribunal ("AAT") given on 18 August 1997. That decision affirmed a decision of the Social Security Appeals Tribunal ("SSAT") dated 4 October 1996 which, in turn, affirmed a decision of a delegate of the Secretary to the Department of Employment, Education, Training and Youth Affairs (respectively "the Secretary" and "the Department") given on 22 April 1996.

The decision in question was made pursuant to s 660I of the Social Security Act 1991 (Cth) ("the SS Act") to cancel Mr Marabouti's "newstart allowance" on the ground that, by refusing a suitable job offer, Mr Marabouti had failed to take reasonable steps to keep to the terms of his Case Management Activity Agreement ("CMAA"). Section 660I provides:

"If the Secretary is satisfied that a newstart allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended."

The AAT was once named as second respondent in this proceeding, but by consent I ordered that it be removed as a party.

BACKGROUND FACTS

Mr Marabouti was educated to secondary school level in France before attending the American University for three years. After working for some time as an insurance surveyor, he migrated to Australia where he unsuccessfully sought similar employment. He was employed over a twelve month period between 1986 and 1987 as an assistant clerical officer in the Commonwealth Department of Social Security. In substance, since then he has had no full time or part time employment and social security benefits have been his only income.

In November 1995, Mr Marabouti received a Certificate in Food Skills from the Technical and Further Education Commission ("TAFE"). He told the AAT that this qualified him to work as a "Cook Grade 1". According to the AAT's Reasons for Decision, Mr Marabouti also completed "two years of study in 1994/1995" for which he was awarded a further certificate which qualified him "to work as a Cook Grade 2 in the hospitality industry". However, he has never held a paid or unpaid position in that industry, although in his written statement he claimed that he had undertaken eight months of casual work as a cook prior to undertaking his courses.

On 12 April 1995, Mr Marabouti entered into a CMAA. This was a written agreement signed by him. It contained the following declaration:

"I agree to accept a suitable job offer that becomes available even if I am doing an approved activity or training." (emphasis supplied)

It also contained the following:

"I understand that:

1. If I do not accept a suitable job offer my allowance may be stopped; my participation in the case management system may also be cancelled; ..." (emphasis supplied)

In fact, par 39 (2) (a) of the Employment Services Act 1994 (Cth) ("the ES Act") provided that a CMAA was taken to include a term to the effect that the person was required to "accept any offer of paid work, other than work that is unsuitable to be undertaken by the person".

In April 1996, Mr Marabouti on his own initiative applied to Brumbies Café at 580 George Street, Sydney for the job of "Short Order Cook". On Monday 15 April 1996, he was interviewed by Mr Chris Pantechis of Brumbies Café who apparently considered and told Mr Marabouti that he did not have sufficient experience for the position. Four days later, on Friday 19 April, Mr Pantechis contacted an officer of the Department to inquire about "subsidy rates". He was informed that, as Mr Marabouti had been unemployed for five years, an employer would be entitled to a subsidy of $9,450. The same day, Mr Pantechis sent a telegram to Mr Marabouti, asking Mr Marabouti to contact him. Mr Marabouti apparently received the telegram on Monday 22 April and immediately contacted Mr Pantechis. Mr Pantechis said that he had created a position of "Assistant Cook" (Cook Grade 1) for him. Mr Marabouti refused on the basis that he was more skilled, being qualified as a "Cook Grade 2". Mr Pantechis told Mr Marabouti that he would contact Mr Marabouti's case manager at the Department about the refusal.

True to his word, on the same day Mr Pantechis contacted an officer of the Department to complain about Mr Marabouti's refusal of his offer. A "Record of Interview" completed by Mr Marabouti's Case Manager dated 22 April 1996 reads as follows:

"Employer (Brumbies Café) had phoned on 19/4/96 to enquire about subsidy rates for this client. As client has been registered for 5 years, employer would be eligible for a subsidy of $9,450. Client had self-served [applied on his own initiative] to the vacancy of a Short Order Cook but the employer did not think his experience was adequate but was willing to create a position as an Assistant Cook (with Jobstart Subsidy). As detailed in other 'Record of Interview', when contacted by the employer, the client declined the position as 'unsuitable'. However, given that the client is 55 years old, registered 5 years and has been for 41 other positions through the CES without success, I would argue that the client was in no position to be fussy and reject the position on offer. Thus, a breach has been recommended."

The "other 'Record of Interview'" mentioned recorded the conversation earlier in the day in which Mr Pantechis complained to the Department about Mr Marabouti's rejection of the job of Assistant Cook.

The upshot of Mr Pantechis's complaint was that on the day Mr Marabouti refused the job offer (22 April), his Case Officer recommended that "an activity test breach [be] applied", and a delegate of the Secretary decided that Mr Marabouti had

"failed the activity test because [he] declined position he was more than qualified for [and had] been [unemployed] for 269 weeks"

and had thereby failed to comply with subs 45 (5) of the ES Act. That sub-section provided:

"(5) The person is not qualified for a newstart allowance ... in respect of a period unless (...):

(a) when the person is required under section 38 to enter into a Case Management Activity Agreement in relation to the period, the person enters into that agreement; and

(b) while the agreement is in force, the person satisfies the Employment Secretary that the person is taking reasonable steps to comply with the terms of the agreement; ..." (emphasis supplied)

As noted earlier, the effect of the decision of the delegate of the Secretary was therefore that Mr Marabouti 's newstart allowance was cancelled pursuant to s 660I of the SS Act.

Apparently Mr Marabouti became aware of the decision on Monday 25 or Tuesday 26 April. On Tuesday 26 April, he attended at an office of the Department to complain about the decision. He re-iterated that he had rejected the position of "Assistant Cook" (Cook Grade 1) because he was a "Cook" (Cook Grade 2). However, the delegate was not persuaded to change his decision.

On 29 April, Mr Marabouti sought review of the delegate's decision by a Departmental "Authorised Review Officer". On 30 May, that Officer notified Mr Marabouti that she had "decided not to change the decision".

On 19 June, Mr Marabouti lodged an application for review with the SSAT. On 4 October, the SSAT affirmed the decision of the Authorised Review Officer.

On 12 November, Mr Marabouti lodged an application for review with the AAT. On 18 August 1997, the AAT affirmed the decision of the SSAT.

Mr Marabouti filed his notice of appeal in this Court under s 44 of the AAT Act on 22 September 1997.

The AAT's Reasons for Decision

The AAT noted that the issue was whether Mr Marabouti had taken reasonable steps to comply with his CMAA as required by subs 45 (5) of the ES Act. That sub-section was set out earlier. The next subsection, subs 45 (6), provided:

"(6) For the purposes of paragraph (5)(b), a person is taking reasonable steps to comply with the terms of a Case Management 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."

As was noted earlier, Mr Marabouti's CMAA required him to "accept a suitable job offer". The AAT first considered whether the employment offer rejected by Mr Marabouti was unsuitable. In doing so it referred to subs 601 (2A) of the SS Act which was as follows:

"(2A) For the purposes of subsection (1) and subparagraph (2) (a) (i), particular paid work is unsuitable for a person if and only if, in the Secretary's opinion:

(a) the person lacks the particular skills, experience or qualifications that are needed to perform the work; or

(b) the person has an illness, disability or injury that would be aggravated by the conditions in which the work would be performed; 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

(d) the work would involve the person being self-employed; or

(e) the work would be covered by an industrial award but the employer would only employ the person if the person agreed to become a party to an agreement reducing or abolishing rights that the award confers on employees; or

(f) the work would not be covered by an industrial award and the remuneration for the work would be lower than the minimum applicable rate of remuneration for comparable work that is covered by an industrial award; or

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

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

In fact, these eight paragraphs were identical to those in subs 42 (1) of the ES Act which defined "unsuitable" paid work for the purposes of par 39 (2) (a) of that Act. It will be recalled that par 39 (2) (a) had the effect that Mr Marabouti's CMAA was taken to include a term to the effect that Mr Marabouti was required to accept any offer of paid work, other than work that was "unsuitable" to be undertaken by him.

The AAT was not satisfied that any of the eight paragraphs described the circumstances of Mr Marabouti's case. In particular, in relation to par (a), it considered that Mr Marabouti had the necessary skills, experience and qualifications to perform the offered job of Assistant Cook. In relation to par (h), the AAT did not accept that the work was unsuitable "for any other reason", saying:

"the Tribunal does not accept [Mr Marabouti's] reason for declining a job offer simply because he possesses, in his opinion, skills that allow him to undertake higher level work as a Cook."

The AAT therefore found that the job offer was not unsuitable and that Mr Marabouti had breached his CMAA by refusing it. It went on to find that:

"the main reason for failing to comply involved a matter within [Mr Marabouti 's] control and the circumstances which prevented [Mr Marabouti] from complying were reasonably foreseeable by [Mr Marabouti]",

and that Mr Marabouti had "failed to take reasonable steps to comply with the terms of" his CMAA within the meaning of subs 45 (6) of the ES Act set out above.

GROUNDS OF REVIEW

According to Mr Marabouti's Amended Notice of Appeal, the following issues of law are raised by the appeal:

"(a) whether Mr Marabouti was denied natural justice by the First Respondent; and

(b) whether the [AAT] failed to take account of relevant considerations in the interpretation and application of terms of the Case Management Activity Agreement, section 601 (2A) of the Social Security Act 1991 and section 45 (6) of the Employment Services Act 1994."

The stated grounds of review are as follows:

"(a) [Mr Marabouti] was denied the opportunity to explain or comment about his alleged conduct prior to the decision to cancel his Newstart Allowance, and so that, in the circumstances -

(i) the decision to cancel [Mr Marabouti's] Newstart Allowance was biased because there was pre-judgment without any explanation or comment by [Mr Marabouti];

(ii) [Mr Marabouti] was not given any advice or notice by the [Department] of the adverse implications of his alleged conduct.

(b) The [AAT] erred in finding that the offer of Assistant Cook made on about 22 April 1996 by the potential employer, Brumbies Café, was a 'suitable job offer' because the [AAT] failed to take account of relevant considerations, specifically -

(i) the offer of employment made by the potential employer, Brumbies Café, on about 22 April 1996 was not the job for which [Mr Marabouti] had applied;

(ii) the offer of employment made by the potential employer, Brumbies Café, was not made in writing and did not specify the remuneration to be paid;

(iii) the difference in remuneration between the job for which [Mr Marabouti] applied (Short Order Cook) and the job subsequently offered to Mr Marabouti (Assistant Cook).

(c) The [AAT] erred in finding the requirement that [Mr Marabouti] accept 'any suitable job offer that became available' applied to the offer of Assistant Cook made on about 22 April 1996 by the potential employer, Brumbies Café, because the [AAT] failed to take account of relevant considerations, specifically -

(i) the job offer was not properly or reasonably made available to [Mr Marabouti];

(ii) the conduct of the potential employer in 'creating' a position of lower remuneration for [Mr Marabouti] and the effect of such conduct in terms of sub-sections 601 (2A) (h) of the Social Security Act 1991 and 45 (6) of the Employment Services Act 1994."

On the hearing, a further issue arose. This was whether par 601 (2) (b) of the SS Act required that Mr Marabouti be given notice by the Secretary before he could be considered not to have taken reasonable steps to comply with his CMAA. Subsection 601 (2) provided as follows:

"601 (2) A person also satisfies the activity test in respect of a period if:

(a) the Secretary is of the opinion that, throughout the period, the person:

(i) should undertake particular paid work, other than paid work that is unsuitable to be done by the person; ... and

(b) the Secretary notifies the person that the person is required to act in accordance with the opinion; and

(c) the person takes reasonable steps to comply, throughout the period, with the Secretary's requirement." (emphasis supplied)

REASONING

It is convenient to deal with the issue relating to par 601 (2) (b) of the SS Act first.

Section 593 of the SS Act provided, relevantly, that a person qualified for a newstart allowance if he or she:

1. satisfied the Secretary that he or she was unemployed;

2. satisfied the activity test; and

3. satisfied the Secretary that he or she was taking reasonable steps to comply with the terms of his or her "Newstart Activity Agreement".

Subsection 601 (1) provided, in effect, that a person was to be taken to satisfy "the activity test" if he or she was actively seeking, and was willing to undertake, suitable paid work.

Subsection 601 (1A) provided that the Secretary might notify a person who was receiving a newstart allowance that he or she must take reasonable steps to apply for a specified number of job vacancies in a specified period. Subsection 601 (1B) provided that a person who failed to comply with such a notice did not satisfy the activity test.

Subsection 601 (2) was set out earlier. In summary, it provided, relevantly, that a person also satisfied the activity test if: (1) the Secretary was of the opinion that the person should undertake particular paid work "other than paid work that [was] unsuitable to be done by the person"; (2) the Secretary notified the person that he or she was required to act in accordance with that opinion; and (3) the person took reasonable steps to do so. On the other hand, subs 601 (3) provided that a person who failed to take reasonable steps to comply with such a requirement of the Secretary did not satisfy the activity test.

Subsection 601 (4) provided in effect that a person also satisfied the activity test if he or she took reasonable steps to comply with the terms of a Newstart Activity Agreement between the CES and the person (the "CES" was defined in s 4 to mean the Commonwealth Employment Service established by s 8 of the ES Act. On the other hand, subs 601 (5) provided, in effect, that a person who failed to comply with his or her Newstart Activity Agreement did not satisfy the activity test even though he or she complied with subs 601 (1).

(Subsection 45 (9) of the ES Actprovides that references in s 601 of the SS Act to a "Newstart Activity Agreement" are to be taken as including a reference to a CMAA.)

It will be noted that these various provisions were cumulative: they identified criteria all of which a person had to meet in order to satisfy the activity test, that is, criteria, failure to meet any one of which signified that the person did not satisfy the activity test.

Subsection 601 (2) in substance relevantly permitted the Secretary, by written notification, to require a person to undertake particular suitable paid work. But it does not follow that a person who refused a suitable job offer in other circumstances did not fail to satisfy the activity test. Refusal of a job offer might indicate that the person was not "willing to undertake" suitable paid work (subs 601 (1)) or was not taking reasonable steps to comply with his or her CMAA (subs 601 (4)). Paragraph 601 (2) (b) did not in terms require notice to be given of an intention of the Secretary to cancel a newstart allowance pursuant to s 660I; nor did the terms of any other provision of the SS Act or the ES Act so require. Subsection 601 (2) seems to contemplate a situation in which the Secretary becomes aware of work which he or she considers suitable for a person in receipt of, inter alia, a newstart allowance. The effect of the subsection is that if, after notification, the person does not accept that work, he or she does not satisfy the activity test. But it does not follow that, when a job is offered, otherwise than through the Secretary, to a person in receipt of a newstart allowance, the person need not accept the offer unless first directed to do so by the Secretary. The obligation to accept a suitable job offer is independent of subs 601 (2) and is found in the CMAA.

Mr Marabouti failed the activity test because he failed to comply with the term of his CMAA which required him to "accept a suitable job offer". He did not fail the activity test by reason of a failure to comply with a notified requirement of the Secretary that he undertake particular suitable paid work. Since there was no such requirement of the Secretary, there was no occasion for the Secretary to give written notice under par 601 (2) (b).

There is still a question, however, whether, as Mr Marabouti contends in ground (a) of his amended notice of appeal, the failure to give him any warning of the intention to make an order under s 660I, or to allow him to comment upon or explain his conduct, demonstrated bias on the part of the decision maker or amounted to a denial of natural justice.

The alleged bias is said to arise "because there was pre-judgment without any explanation or comment by Mr Marabouti ". This seems to mean that there was "bias" or "pre-judgment" in that or because the decision was taken without prior explanation or comment by Mr Marabouti. The ground pre-supposes that the decision maker was required to afford Mr Marabouti an opportunity to be heard. If that requirement did not exist, the ground is not made out. The basis of the bias complaint is therefore the contention that Mr Marabouti was not given an opportunity to be heard when he should have been.

In response, the Department makes a threshold submission. This is that even if the delegate of the Secretary was in breach of an obligation to warn Mr Marabouti of the consequences of his continued failure to accept the job offer and of an obligation to give him an opportunity to be heard, the de novo nature of the review, in turn by the "Authorised Review Officer", the SSAT and the AAT, was such that the breach was "cured", because Mr Marabouti had an opportunity to put to that Officer and those tribunals any matters which he might have put to the original decision maker (see ss 1240 and 1243 (Authorised Review Officer); 1247 and 1253 (SSAT); and 1283 of the SS Act and s 43 of the AAT Act (AAT). Mr Marabouti submits, in reply, that the AAT's decision "involved the same errors, errors which were not cured by the hearing of this matter by" the AAT. However, if this submission is that Mr Marabouti was not given an opportunity to put to the AAT all the reasons he might have put to the original decision maker as to why he was not obliged to accept the job offer, in particular, that the job offered was not the job he applied for, was at a lower level of remuneration, was a job for which he was over-qualified and was not properly or reasonably made available to him, and that the job offer was not made in writing and did not specify the remuneration payable, I reject the submission.

It is clear that Mr Marabouti put some of these very matters to the Department immediately he was notified of the original decision and that he later put such matters to the Authorised Review Officer, the SSAT and the AAT. But, what is important is that he was afforded a full opportunity to put all of them to that Officer and those tribunals and that they had power to set aside the decision of the delegate of the Secretary to cancel Mr Marabouti's newstart allowance. In my opinion, if there was an obligation incumbent on the Secretary's delegate to comply with natural justice requirements, the failure to do so was "cured" by the subsequent reviews; cf Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116; Preston v Carmody (1993) 44 FCR 1 (Wilcox J) at 14-18; Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 (Wilcox J) at 298-299.

Mr Marabouti also submits that the Department was "under an obligation to advise [him] of the adverse implications of his refusal to accept the employer's subsequent offer of employment". This is a claim, not that Mr Marabouti should have been given a hearing, but that he should have been warned that failure to accept the job offer would be treated as a breach of his CMAA and lead to cancellation of his newstart allowance. The implicit suggestion is that if he had been so warned, he might have accepted the job offer.

Four observations may be made about this submission. First, Mr Marabouti did not make the submission to the original decision maker, the Authorised Review Officer, the SSAT or the AAT. Second, Mr Marabouti apparently did not seek renewal of the job offer when he became aware of the delegate's decision on 25 or 26 April 1996, at most four days after the job had been offered to him. Rather, he persisted in maintaining that the job offered was not suitable and that for this reason he was entitled to reject it.

Third, although it might not have been so in the circumstances of this case (there is simply no evidence on the point) where a job offer is made and rejected, often there will be no possibility of renewal, because, by the time the person becomes aware of the cancellation of his or her newstart allowance, the job will have been taken by someone else. The commonness of this situation, of which the legislature is taken to have known, militates against the view urged by Mr Marabouti that the Department was, in effect, bound to afford him an opportunity to change his mind.

Fourth, it is a sufficient reason for rejecting the submission that Mr Marabouti already knew that he was obliged to accept any suitable job offer and that his failure to do so was a ground for cancellation of his newstart allowance. The CMAA, signed by him, said so. In my opinion, there was no obligation to draw Mr Marabouti's attention to that which he already knew.

In the result, and contrary to his submission, I do not think that Mr Marabouti has established an effective breach of an obligation either to warn him or to give him an opportunity to be heard. But if I am wrong in this conclusion, Mr Marabouti should nonetheless not be granted relief because he clearly would have acted as he in fact acted in any event.

The cases referred to by Mr Marabouti do not affect this conclusion. In Re Wan and Secretary, Department of Social Security (1992) 30 ALD 899 (AAT/Deputy President P W Johnston), the person failed to attend an information session which he had agreed, over the phone, to attend. It was held that he had not failed the activity test, as (1) the attendance in question was not required by his Newstart Activity Agreement, and (2) the person had not been effectively notified under par 601 (2) (b) of the SS Act that the Secretary required him to attend. In the present case, but not in that case, it was a term of the CMAA that Mr Marabouti accept a suitable job offer and any question of notification by the Secretary does not arise, (as noted earlier).

In Re Bartlett and Secretary, Department of Social Security (1994) 33 ALD 661 (AAT/Deputy President A M Blow), a newstart allowance was cancelled because of the person's failure to enter into a Newstart Activity Agreement. It was held that the procedure laid down in s 607 (1) of the SS Act had not been followed, in that the person had not been given notice that he was "being taken to have failed to enter into the agreement". However, that decision is not authority for the proposition that notice of intention to cancel a newstart allowance had to be given on the facts of the present case, where no applicable procedure was laid down in the statute. Again, as I have said above, the express requirement of notification in par 601 (2) (b) is not presently relevant.

I turn to grounds (b) and (c), both of which assert a failure to take into account relevant considerations. The ground of failure to take into account a relevant consideration is made out only if the consideration is one which the decision maker was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J).

In determining what are relevant considerations, regard should be had to subs 42 (1) of the ES Act, which lists the same eight considerations as subs 601 (2A) of the SS Act, set out earlier, and which identifies sets of circumstances in which paid work is to be taken to be "unsuitable". However, it was not submitted that the position offered to Mr Marabouti was unsuitable by reference to any of the seven specific grounds identified in subs 42 (1) and it is hard to see how, on the evidence, any of those grounds are relevant to his circumstances. The sole relevant ground therefore is the eighth and non-specific "any other reason" ground. This ground must be read consistently with the specific grounds preceding it, all of which refer to objective considerations: there is nothing in that context to suggest that particular paid work is to be, or may be, considered unsuitable simply because the person is, or thinks that he or she is, over-qualified. Paragraph (a) of s 42 (1) identifies, as a basis of unsuitability, that in the Secretary's opinion:

"(a) the person lacks the particular skills, experience or qualifications that are needed to perform the work."

It is not in issue that Mr Marabouti possessed the particular skills, experience and qualifications that were needed to perform the work of a Cook Grade 1. This is not to say that the fact that a job would involve a person in performing work that is well below the level of, and possibly even unrelated to, his or her skills, experience and qualifications will necessarily always be irrelevant. However, that is not this case.

The first allegedly relevant consideration was that the job offered was not the job for which Mr Marabouti had applied. However, the CMAA refers to "a suitable job offer that becomes available". It does not refer to the circumstances in which the offer becomes available. In particular, it does not specify that the person must have applied for the job offered. The fact that a person applies for one job, is unsuccessful and is offered another does not, in itself, render the latter job unsuitable. It was not shown that the offer of the job of Cook Grade 1 was not a genuine one.

The second allegedly relevant consideration is that the offer was not made in writing and did not specify the remuneration to be paid. It is hard to see how the lack of writing was relevant to suitability. Moreover, Mr Marabouti could have requested that the offer be made or confirmed in writing. The matter was, therefore, at least in the first instance, within Mr Marabouti's control: see subs 45 (6) of the ES Act set out earlier.

As for the failure to specify remuneration, there is simply no evidence as to what remuneration was contemplated by the prospective employer. According to the AAT's Reasons for Decision, the Department submitted before the AAT that the job was to be paid at award rates. However, the AAT did not make a finding to this effect. Rather, it simply noted that Mr Marabouti had not led any evidence to show that the remuneration would have been below the applicable or a comparable award rate: cf pars 42 (1) (e) and (f) of the ES Act; pars 601 (2A) (e) and (f) of the SS Act. Nor was any evidence relevant to the present issue sought to be adduced on the hearing of this appeal. Yet it would have been a simple matter for Mr Marabouti to inquire as to the remuneration offered.

The third allegedly relevant consideration is that the remuneration for the job offered was different from (presumably lower than) that for the job for which Mr Marabouti had applied. However, as I have said above, no evidence was led before the AAT of the rates of remuneration. There was also no evidence that Mr Marabouti would be paid otherwise than at the award rate or a comparable rate. The AAT noted this lack of evidence in its finding that pars 601 (2A) (e) and (f) of the SS Act did not apply to render the job offered "unsuitable". In those circumstances, it is hard to see how the AAT can be said to have failed to take into account a relevant consideration.

In fact, on the hearing of the present appeal, a document showing the award rates for employees in the hospitality industry was tendered by Mr Marabouti as an aide memoire. It shows that, as at 23 June 1998, the basic award rate for a Cook Grade 1 was $415.20 per week and the basic award rate for a Cook Grade 2 was $433.50 per week, a difference of $18.30 per week. It is, of course, important to emphasise that this document was not before the AAT. But in any event, the difference in remuneration (only $18.30 per week) does not establish that a position as a Cook Grade 1 was unsuitable for Mr Marabouti while a position as a Cook Grade 2 was suitable for him.

The fourth allegedly relevant consideration is that "the job offer was not properly or reasonably made available to the respondent". I have some difficulty in understanding this ground. It has not been in issue that the job offer was in fact made. The AAT recorded this as an undisputed fact. It was not made clear in what way the offer was "improperly" or "unreasonably" made. In those circumstances, it was not an error on the part of the AAT not to take those matters into account.

The fifth allegedly relevant consideration is that the employer "created" a position of lower remuneration for Mr Marabouti. Of itself, this would not be a relevant consideration: the fact that a position is created with a particular employee in mind does not necessarily render that position unsuitable. It may be that Mr Marabouti is seeking to suggest that the potential employer knew that he was qualified to work as a Cook Grade 2, but decided to offer him the position of Cook Grade 1 in order to pay less money and obtain the subsidy of $9,450. It is not clear whether this is the substance of the argument put on behalf of Mr Marabouti on the appeal. The Reasons for Decision of the AAT do not record that a submission along these lines was put to it. In any event, there is no evidence from which it would be proper to infer that this was Mr Pantechis's state of mind and motive.

As noted earlier, when one reads the "any other reason" ground in subs 42 (1) of the ES Act in conjunction with the other grounds, it is apparent that it is not open to a person to refuse a job offer simply because he or she has more than the particular skills, experience or qualifications that are needed to perform the work. It would perhaps be rare that a person would have no more and no less than the needed level of skills, experience and qualifications for a job. Although, a question of degree may ultimately be raised, in the present case it was open to the AAT to conclude that the position offered was suitable for Mr Marabouti. One seemingly relevant consideration to which the AAT might have referred was that Mr Marabouti had been unemployed for some five years before the offer was made and had unsuccessfully applied for approximately forty other positions - a consideration suggesting that, whatever Mr Marabouti's qualifications, he could not reasonably be "overly selective".

CONCLUSION

No ground of review relied on is made out. The orders of the Court are that: