Moralde and Secretary, Department of Family and Community Services
[2005] AATA 159
•22 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 159
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1238
GENERAL ADMINISTRATIVE DIVISION ) Re EMMANUEL MORALDE Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date22 February 2005
PlaceSydney
Decision The decision under review is affirmed. [Sgd] Rear Admiral A R Horton AO
Member
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – previous activity test breach – offer of suitable work – whether offer received – if offer received, failure to accept suitable job offer - application of activity test breach rate reduction period – decision to impose 24 percent penalty – evidence in support of contention that suitable job offered – decision affirmed
Social Security Act 1991 ss593, 601, 601(1A), 601(2A), 606, 626, 630, 644AA, 644AB, 644AE
REASONS FOR DECISION
22 February 2005 REAR ADMIRAL A R HORTON AO 1. This is an application to the Administrative Appeals Tribunal (“the Tribunal”) to review a decision of the Social Security Appeals Tribunal (“SSAT”) on 17 September 2004 that affirmed a decision of an Authorised Review Officer (“ARO”) of Centrelink on 5 August 2004 to impose a 24 percent activity test breach rate reduction period on payment of Newstart Allowance to Mr Emmanuel Moralde (“the Applicant”). The original decision to impose such reduction over a period of 26 weeks from 26 July 2004 was taken on 12 July 2004.
2. At a hearing before the Tribunal on 8 February 2005, Mr Moralde was self represented. Mr James Larcombe, an advocate from the Centrelink Service Recovery Team, appeared for the Secretary, Department of Family and Community Services (“the Respondent”). The Tribunal took into evidence the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975, and the Respondent’s Statement of Facts and Contentions (Exhibit R1). At the hearing Mr Moralde gave evidence and Mr Thomas Cain gave evidence for the Respondent.
BACKGROUND
3. Mr Moralde applied for Newstart Allowance on 17 May 2004, having ceased full time employment with Domayne Furniture. Prior to that employment, which commenced on 8 March 2004 (T10 page 20), he had been in receipt of that allowance. On 12 July 2004 a decision was taken by Centrelink to apply an activity test breach reduction period, based on the advice from his job network provider, IPC Employment (“IPC”) at Strathfield, that Mr Moralde had declined a suitable job offer from Essential Outsourcing on 16 June 2004, this being an offer that Mr Moralde denies receiving. As this activity test breach was the second such breach in a two year period, the Respondent applied a 24 percent rate reduction in accordance with the legislation.
4. In accordance with the provisions of section 593 of the Social Security Act 1991 (“the Act”), and as far as is relevant in this matter, a person is qualified for Newstart Allowance in respect of a period of unemployment if the activity test is satisfied. Section 601 defines the activity test, and requires that the person actively seeks, and is willing to undertake, paid work. Subsection 601(1A) makes provision for the Secretary to notify the person to take reasonable steps to apply for a particular number of advertised job vacancies. Subsection 601(2A) defines certain criteria wherein particular paid work may be considered unsuitable for a person.
5. On 24 May 2004, Mr Moralde completed a Customer Declaration Form for Newstart Allowance, this document providing the basis on which the application for the allowance was made, and the general requirements that must subsequently be adhered to. As agreed, a Preparing for Work Agreement, that is a Newstart Allowance Activity Agreement, was prepared, section 606 of the Act defining the scope of the Activity Agreement. This document defines the responsibilities of both Centrelink and the applicant, and in particular, it notes the circumstances under which breach penalties may be imposed, one circumstance being the refusal of a job offer. Penalty for failing to comply with a Newstart Activity Agreement is covered under section 626 of the Act.
6. Section 630 refers to refusal of a job offer, and relevantly states:
“630(1) If a person has refused or failed, without reasonable excuse, to accept a suitable offer of employment (the failure), a newstart allowance is not payable to the person.
630(2) 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)…”
7. Section 644AA refers to activity test breach reduction periods, and defines the period as 26 weeks unless particular considerations apply in which case a reduction to 8 weeks may be applicable. Section 644AB requires that notice in writing must be given to inform the person of the commencement of an activity test breach rate reduction period, such period to start on the 14th day after the day of such notice unless particular circumstances apply. Section 644AE defines the criteria for calculation of the rate of reduction, the formulae requiring an 18 percent reduction of the maximum payment rate in the case of a first breach, and a 24 percent reduction if the breach is the second in a 2 year period.
EVIDENCE
8. Following his failure to accurately declare income from his employment in 2002, Mr Moralde’s Newstart Allowance was stopped in September 2002. On restoration after reapplying, an 18 percent activity test breach rate reduction over 26 weeks from 30 October 2002 was applied. In oral evidence, Mr Moralde confirmed that this was not an issue before the Tribunal.
9. As earlier noted, Mr Moralde commenced employment with Domayne Furniture on 8 March 2004, at which time he ceased eligibility for Newstart Allowance. He was employed as a storeman at the Alexandria warehouse, his job involving heavy and repetitive movement of furniture and white goods. Shortly thereafter, he felt pain in his lower back, and sought medical attention. A report from Dr J Lim of Dr Glenn and Partners Medical Imagining (T7 page 13) dated 17 May 2004 states ”There is a minor lumbar scoliosis convex to the left. No evidence of pars defects or spondylolisthesis. The lumbar disc spaces are preserved. There is no evidence of a discrete bony lesion.” In evidence, Mr Moralde stated that no other positions were available at Domayne, and he left the company as he considered himself unable to continue with work as a storeman. He described his current back condition as fine, and not an inhibitor from work provided it did not involve heavy or repetitive lifting.
10. Mr Moralde re-applied for Newstart Allowance on 17 May 2004, the conditions of eligibility being as detailed in the Customer Declaration Form earlier referred to, and the Preparing for Work Agreement. A file note (T18 page 45) from Ms Christine Butler (ARO) states that Mr Thomas Cain, representing the labour hire company Essential Outsourcing, a business owned by his son, was given 10 names by the job network provider IPC Employment (Strathfield) for a printing job at Silverwater on 16 June 2004. The file note, reflecting discussions on 5 August 2004 with Ms Mary Rizos of IPC, indicated that Mr Cain was a “reliable source of information and hires many people”, and that he had reported the following day that Mr Moralde had refused the job offer, because “he had a sore nose”. The file note also indicates that Mr Moralde had later advised Ms Rizos that “his friend had taken the call” and he could not do the type of work required because “he had a sore back”.
11. An undated letter from Mr Cain to Ms Rizos (T19 page 47) states:
“On Wednesday, 16 June, 2004 I requested a number of clients that were looking for work as we required staff to fill a number of vacancies for shifts for 2.00 pm that days and 6.00 am the following morning. You proceeded to send 6 resumes of which Emmanual Moraldi [sic] was one. I contacted Emmanual and asked if he would be able to start at 2.00 pm that afternoon he told me he could not. I then asked if he would be able to start at 6.00 am the following morning, he again said he couldn’t. I asked him why he could not work? He replied that he had a sore nose.
The following morning I rang to report to you with various reasons why people make themselves not available for work.
I believe that something should be done as those people just do not want to work”.
12. In amplification in his oral evidence, Mr Cain stated that his usual practice was to ring on mobile telephone numbers as prospective casual workers were often away from home. He had done so that day, sometime between 10.00 am and 11.00 am, and was in no doubt that he had been speaking with Mr Moralde. He stated that he advised Mr Moralde of the requirements of the job, and when advised that Mr Moralde had a sore nose, explained that he would be provided with a mask and ear plugs. In further explanation, Mr Cain gave evidence that casual employees under this type of arrangement were briefed and given Occupational Health and Safety orientation on starting the job, and depending on the performance and aptitude of the employee, longer term casual or permanent employment might result.
13. In respect of a “nose problem”, Mr Moralde was employed by Flexible Packaging as a bag machine operator in 2002. The business involved the making of plastic bags, which generated difficult environment conditions and smell, and after about 12 months in the job, he started to suffer headaches, forcing him to resign from this employment. He gave evidence that he no longer had any nose problems, albeit he could not work in an environment that might lead to further “nose” problems.
14. At the time the incident before the Tribunal is alleged to have occurred, Mr Moralde was boarding at Sydenham in a house with two pensioners, the father being quite elderly and being cared for by his son. Mr Moralde stated that the former would not answer telephone calls, and whilst the latter might do so in the absence of Mr Moralde, he had a mental condition and might not pass on any message. He further was an habitual smoker, and in the experience of Mr Moralde, on most occasions never took any messages. Neither pensioner was aware of the problems Mr Moralde had experienced when working for Flexible Packaging, and hence had no knowledge of his previous nose problem.
15. Mr Moralde stated that IPC had both his home phone and mobile numbers, and he always carried his mobile phone when away from home. He had at no time received a telephone call from Mr Cain, nor had he met him until the events in respect of this hearing. Nor had he been advised by the other residents in the house at Sydenham of any call for him at that time. He stated that he was shocked to receive advice from Centrelink (T13 page 32) that he had declined the offer of suitable work, and had no knowledge of any call from Mr Cain. He further stated that even had he received a call from Mr Cain, he would not have referred to any nose problem, as the condition was benign.
16. He further expressed concern that Ms Rizos of IPC Strathfield had not kept him informed of prospective employment opportunities, and had not advised him that he had been referred to Mr Cain. He stated that he presently remains a casual employee of Ready Workforce, in the event that suitable employment should become available, and had placed himself with Accelerate Employment in order to increase his opportunities for employment. In respect of the back problem that had led to him ceasing employment with Domayne Furniture in early 2004, that would not prevent him working in an environment where there was no requirement for heavy and/or repetitive lifting.
17. There is no medical evidence before the Tribunal in respect of nose or respiratory problems. Other than the radiological report from Dr Lim as referred to in paragraph 9 above, which indicated no evidence of any serious lumbosacral spine condition, there are no medical reports in respect of a back condition
DECISION
18. Whilst there is some difference in the evidence before the Tribunal as to how many resumes were provided by IPC to Mr Cain, the ARO noting that the information given her by Ms Rizos was to the effect that 10 names had been provided, whereas Mr Cain’s report to Ms Rizos refers to 6 resumes, this discrepancy in detail is, in the view of the Tribunal, of little consequence. The important issue is whether Mr Cain made a job offer to Mr Moralde, and if so, was it refused.
19. The evidence of Mr Cain, as provided in his letter to Ms Rizos and as amplified orally to the Tribunal, is consistent. The SSAT gave weight to his evidence over that of Mr Moralde as he “has no vested interest in the matter”, whereas Mr Moralde had such an interest. The Tribunal accords with this position, and further places weight on the evidence given by Mr Cain as to the extent of the discussions he had with Mr Moralde. Further, Mr Cain referred to a “nose problem”, a condition that could only have come to his attention from Mr Moralde.
20. Any suggestion that Mr Cain spoke with one of the other residents is refuted on the evidence of Mr Moralde that they were not aware of his previous nose problems. Mr Cain was also adamant that he rang Mr Moralde on his mobile telephone number, the evidence of the latter being that he always carried the mobile phone. It seems unlikely on that evidence that Mr Cain spoke with one of the other residents.
21. In his both his written report and his oral evidence, Mr Cain expressed his evident concern that some people in receipt of social security benefits have no desire to undertake employment, and he sees Mr Moralde in this category. It may be that influenced the emphasis he took in this matter in writing to IPC. Whether that was the case or not, the evidence is such as to enable the Tribunal to accept that a job offer was made to Mr Moralde on 16 June 2004, and that offer was not accepted. No reasonable excuse has been provided as to why the offer of employment was not accepted.
22. Centrelink has correctly applied the legislation in respect of the activity test breach rate reduction period of 24 percent, this matter being within two years of a previous breach, and advised Mr Moralde accordingly. Centrelink has also correctly applied a 26 week period from 26 July 2004 in which the reduction period is to take place.
23. The decision under review, that is to impose a 24 percent activity test breach rate reduction period on the payment of Newstart Allowance from 26 July 2004, is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Rear Admiral A R Horton AO, Member.
Signed: Andrew Garcia
AssociateDate of Hearing 8 February 2005
Date of Decision 22 February 2005
Applicant In person
Respondent’s representative Mr J Larcombe
1
0
0