O’Neill and Secretary, Department of Employment (Social services second review)

O’Neill and Secretary, Department of Employment (Social services second review) [2017] AATA 323 (14 March 2017)
Division:GENERAL DIVISION
File Number: 2016/4319
Re:Dominic O'Neill
APPLICANT

AndSecretary, Department of Employment
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:14 March 2017
Place:Brisbane

The decision under review is affirmed.
...........................[sgd]...............................
Senior Member T. Tavoularis
SOCIAL SECURITY – Job Commitment Bonus – whether Applicant received Newstart Allowance for a continuous period of 12 months – whether Applicant was employed in gainful work for 12 months following receipt of Newstart allowance for 12 months – Applicant does not satisfy requirements for Job Commitment Bonus – Decision under review is affirmed
Legislation
Social Security Act 1991, ss 23, 860, 861
Social Security (Administration) Act 1999, s 27D
Secondary Materials
The Guide to Social Security Law
REASONS FOR DECISION
Senior Member T. Tavoularis
14 March 2017
INTRODUCTION

This is an application by Dominic O’Neill (the “Applicant”) for review of a decision by the Social Security and Child Support Division (“AAT1”) dated 14 July 2016 affirming a decision of the Department (“the Respondent”) to reject his claim for a Job Commitment Bonus (“JCB”).
ISSUES
There are four issues for determination in this matter, all of which are time-based. Relevantly, those issues are:
·     “Issue 1” - did the Applicant receive Newstart allowance for a continuous period of at least 12 months?;[1] and
·     “Issue 2” – did the Applicant start gainful work in Australia after the 12 month continuous period expressed above, while he was aged between 18 and 31 years? This requires a finding as to his “start day”;[2] and
·     “Issue 3” – requires:
o   A finding about the “first work period”, and specifically, whether the Applicant completed 12 months of continuous gainful work after that start day?;[3] and
o   a determination of whether the Applicant was an Australian resident throughout the first work period.[4]
· “Issue 4” – if issues 1, 2 and 3 are satisfied, did the Applicant make his claim for JCB within 90 days of becoming qualified (“the claim period”),[5] or in the alternative, should this Tribunal remit this issue to the Respondent for consideration of special circumstances?
[1] See former provision: Social Security Act 1991, s 861(1)(a).
[2] See former provision: Social Security Act 1991, s 861(1)(b).
[3] See former provision: Social Security Act 1991, s 861(1)(c).
[4] See former provision: Social Security Act 1991, s 861(1)(d).
[5] See former provision: Social Security (Administration) Act 1999, s 27D.
HISTORY
The JCB commenced on 1 July 2014 and its purpose was to offer a financial incentive to young Australian job seekers who had been unemployed for 12 months or more to:

(1) find employment, (2) retain that employment, and (3) remain completely off welfare for a continuous period of 12 months.
The intention behind the scheme was, in my respectful observation, both commendable and clearly of potential benefit to long term unemployed young Australians. The JCB was a stated part of the Australian Government’s plan to boost workforce participation and productivity in Australia.
The following quote from the Department of Employment’s web-page is particularly informative:
“The bonus will provide a payment of $2500 to young Australian job seekers who have been unemployed for 12 months or more, if they find and keep a job and remain completely off welfare for a continuous period of 12 months.
Job seekers will receive a further payment of $4000 if they remain in a job and off welfare for a continuous 24 month period.
The bonus will provide long-term unemployed young Australians with a real incentive to get into paid work.
The bonus will only be available to Australians aged 18 to 30 who are receiving Newstart or Youth Allowance (as job seekers) for 12 months or more.
The Department of Human Services will pay the Bonus directly to the job seeker at the end of the 12 and 24 month qualifying periods upon suitable confirmation that their employment has been ongoing and they have not returned to income support.
The Job Commitment Bonus for Young Australians will commence on 1 July 2014 with the first payments expected from July 2015.” [6]
[6] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) p 3 at [23]; Attachment 3, p 1.
The scheme giving rise to the JCB was discontinued on 31 December 2016.
SOME POSSIBLE OUTCOMES
At the hearing, the Respondent’s representative helpfully pointed out that if the Applicant did not satisfy any of the requirements outlined in issues 1, 2, or 3, the Application must fail. Put another way, each of the first three issues must be satisfied.
In the alternative, the Respondent’s representative further helpfully pointed out that if the evidence pointed to a satisfaction of issues 1, 2 and 3, this matter could then be remitted back to the Respondent for consideration of whether “special circumstances” exist pointing to a convincing reason preventing the Applicant from making his claim for the JCB within the mandatory 90 days after becoming so qualified.
Both parties confirmed to me there has been no prior decision on issue 4 because (1) the Department thought issues 1 and 2 were not satisfied while (2) the AAT1 review found due satisfaction of issue 1 but not so for issue 2. Therefore, neither the Department or the AAT1 review found it necessary to address issue 3 or 4.
CONSIDERATION
The qualification requirements for the JCB appear in section 861 of the Act, and are briefly summarised in section 860.
Issue 1: Did the Applicant receive Newstart Allowance for a continuous period of at least 12 months?
Section 861(1)(a) of the Act relevantly provides:
“ … a person is qualified for a job commitment bonus… if:
(a) the person receives, while aged 18 years or over and under 31 …. The following for a continuous period of at least 12 months:
(i) newstart allowance; ….”
My preliminary finding is that the Applicant was, for the purposes of section 861(1)(a)(i) of the Social Security Act 1991 (“the Act”), at all material times, a person aged between 18 and 31 years.[7]
[7] See Exhibit 6, T-documents, T1, p 2 for Applicant’s Date of Birth.
The Respondent contends the remainder of issue 1 is not satisfied. This contention is based on certain Departmental payment records apparently confirming that although the Applicant’s Newstart allowance was cancelled on 13 November 2014, the Applicant was only paid Newstart allowance for the period 24 October 2013 to 22 October 2014. The Respondent’s consequential contention is that the Applicant’s continuous receipt of Newstart allowance falls one [sic] day short of the 12 month requirement stipulated in issue 1.[8]
[8] See Exhibit 5, Respondent’s SFIC, p 4, [28] & [29].
There are certain sections of the Act that may come to the rescue of the Applicant. They are sections: 23(4), (4A), (4AA).[9] In short, these sections provide a person may, in certain circumstances, be taken to be receiving a social security payment until the latest date on which such payment is payable.
[9] As for the specific applicability of sections 23(4A) and (4AA), I agree with the reasons of the AAT1 review decision as expressed at [9] thereof.
The Respondent contends that none of these three sections assist the Applicant. This contention has its basis on a presumption that the Applicant commenced work on

20 October 2014 and was then subject to the income test, with his final instalment of Newstart allowance paid to him on 23 October 2014. The Respondent notes the Newstart allowance was formally cancelled on 13 November 2014 following advice from the Applicant that he was in full-time ongoing employment apparently from 29 October 2014.
According to the Respondent, section 23(4) of the Act has no application because (1) his final instalment of Newstart allowance was paid on 23 October 2014 and (2) he had nil entitlement for the period 23 October 2014 to 4 November 2014 as a result of income he was by then deriving from his employment with Ferris 60 Pty Ltd.
I have difficulty in accepting this submission. The difficulty arises from certain provisions contained in the Guide to Social Security Law (“the Guide”), in particular at paragraph 3.1.12. The Respondent’s basic contention is that section 23(4) does not apply to the Applicant, and consequently, any ongoing payability referrable to his Newstart allowance as may be allowed under section 23(4A) does not apply to him either.[10]
[10] In the Guide, this ongoing payability period is referred to as an Employment Income Nil Rate Period (“EINRP”).
As against that, and as per my colleague’s approach in the AAT1 review, the Guide clearly indicates the concept of an EINRP applies in situations beyond those contemplated by sections 23(4A) and 23(4AA).
Qualification rules for an employment income nil rate period
Recipients qualify for an employment income nil rate period if their social security pension or benefit is not payable because of ordinary income, made up entirely or partly of employment income… and they:
·are below pension age… and
·are receiving a social security pension or benefit … and
·remain qualified … for their social security pension or benefit…, and
·continue to satisfy the payability provisions for their social security pension or benefit, except for being not payable due to the income.[11]
[11] See Exhibit 6, T2, SSCSD Decision at [11]; and also paragraph 3.1.12 of the Guide to Social Security Law.
There seems to be a certain disparity between portions of the material relevant to this issue. On the one hand there are computer records of Centrelink confirming that the Applicant’s Newstart allowance was only cancelled from 29 October 2014. This position is confirmed in a letter dated 13 November 2014 from Centrelink to the Applicant.[12] This letter stipulates a cancellation date of 29 October 2014. This position is augmented by the letter dated 30 October 2015 sent to the Applicant from the Department of Employment, which clearly stipulates: “Our records show you stopped receiving income support on 10/28/14”.[13] To my mind, it therefore seems reasonable for this Applicant to assume he had an entitlement to payment of Newstart allowance up to and including 28 October 2014. This position seems to me to be consistent with the abovementioned Departmental guidelines set out in the guide.
[12] See Exhibit 6, T7, p 82.
[13] See Exhibit 2, Letter from Julie Polson, Department of Employment, dated 30 October 2015.
I therefore consider that – consistent with my colleague at AAT1 review – I can safely find that in accordance with section 23(4) of the Act, the Applicant can be deemed to be entitled to receive Newstart allowance up until 28 October 2014, notwithstanding his employment income. Although not clear from the evidence, it may well have been the case that the Applicant would have received a payment of $Nil for the intervening days between 23 and 28 October 2014 due to his income derived during this period.
Newstart allowance was granted to him with effect from 24 October 2013. I am therefore satisfied that the Applicant received Newstart allowance for a continuous period of at least 12 months as required by section 861(1)(a)(i) of the Act.
I therefore find that issue 1 is satisfied.
Issue 2: what was the Applicant’s “start day”?
Section 861(1)(b) of the Act provides:
“ (b) one of the following subparagraphs applies:
(i) after 12 months of that continuous period the person starts gainful work in Australia, that continuous period ends while the person is aged 18 or over and under 31 and the person is in gainful work in Australia on the day (the start day) after that period ends;
(ii) that continuous period ends while the person is aged 18 or over and under 31 and the person starts gainful work in Australia on a day (the start day) within 30 days after that period ends;”
The Applicant commenced receiving Newstart allowance on 24 October 2013. Therefore, the expiry of 12 months after that date is 24 October 2014.
The evidence relating to the Applicant’s start day with Ferris 60 Pty Ltd is unclear and confusing.
At the AAT1 review, it was not disputed that the Applicant’s start day was 23 October 2014.[14]
[14] See Exhibit 6, T2, SSCSD Decision, p 7 at [15] and [20].
However, the Applicant’s employer has since confirmed to the Respondent that the Applicant commenced work with them on 20 October 2014.[15] Contrary to this evidence, the Applicant tendered a copy of an email from the employer stipulating:
“We are reviewing the points raised in your initial hand delivered email received 29/7/2015. Which [sic] we supplied copies of all the pay sheets and the available time cards which we had on file. Unfortunately we are still trying to locate the other missing time cards, which seem to have been missed placed [sic] during our move to the new office. We are still trying to locate the actual time cards and provide them as requested.”[16]
[15] See Exhibit 5, Respondent’s SFIC, Attachment 2, p 3.
[16] See Exhibit 8, Email from Nikorima Broughton of Ferris 60 dated 16 August 2015.
The Applicant contended that this email constituted convincing evidence that the employer’s suggested start day of 20 October 2014 is not to be relied upon as the actual day on which the Applicant started work. Rather, it is more likely that 20 October 2014 was the commencement of the relevant pay period during which – at some point during that period – the Applicant started work.
At the hearing it was plain to both parties that some type of oral evidence from the employer would have been of significant value. For example, the employer could have explained (without reference to any of its documents, presumably lost in the office move) as to what is meant by the date 20 October 2014. Did the employer actually recall the day the Applicant first came into the work place and literally ‘put his feet under the table’? Alternatively, what day did their pay cycle start on and for what period did it run? Did the first pay period, for which the employer has records indicating payments to the Applicant, begin on 20 October 2014? None of this evidence was made available to the Tribunal or, for that matter, the AAT1 review.
During the hearing the Applicant’s evidence evolved towards a position of a start day on 29 October 2014. The self-serving purpose of nominating 29 October 2014 as the start date is self-evident because if that evidence is accepted, Issue 2 is satisfied. In support of this contention the Applicant pointed to the screenshot of Centrelink’s record of contact from 13 November 2014,[17] which in the second from bottom line records these words:
“Date commenced employment: 29/10/2014”
[17] See Exhibit 5, Respondent’s SFIC, Attachment 1, p 7.
Against this contention, there is an earlier screenshot of Centrelink dated 5 November 2014,[18] which covers the Centrelink reporting period for 23 October 2014 – 5 November 2014. The relevant portion of that screenshot records these things:
“Reported employment income for the following employers:
Earning type = EAR, Employer Name = FERRIS 60 PTY LTD., amount =
$2673.00, hours worked = 99, freq = IOP
Earnings applied;”
[18] See Exhibit 5, Respondent’s SFIC, Attachment 1, p 5.
I think there is little room to doubt that this immediately preceding screenshot should be construed on the basis that for the Centrelink reporting period of 23 October 2014 –

5 November 2014, this Applicant was employed by Ferris 60 Pty Ltd and earned an amount of $2,673.00 and that he also agreed with Centrelink that those earnings could be “applied” in any resulting calculation for any residual Newstart allowance payable to him.
I consider it very unlikely that this Applicant only commenced work on a full-time ongoing basis from 29 October 2014 and in the seven days before he reported to Centrelink

(on 5 November 2014) that he earned a gross income of $2,673.00 having worked for 99 hours.[19] This would mean he worked 14.14 hours per day across that seven day period.
[19] Ibid.
I consider it more probable that this income was derived across a longer period, such as from 23 October 2014 until 5 November 2014 (inclusive).
This finding is consistent with the Applicant’s original evidence to the AAT1 that he commenced work on 23 October 2014.[20] If I were to accept this date or the employer’s evidence that the Applicant in fact commenced work at Ferris 60 Pty Ltd on 20 October 2014,[21] then on either date, I would have to find the Applicant “started” work before and not after a continuous period of at least 12 months of receiving Newstart Allowance.
[20] See Exhibit 6, T2, SSCSD Decision at [15] and [20].
[21] See Exhibit 5, Attachment 2.
The Applicant may be correct in asserting that he did not have to start a new job after the 12 month period. However, in circumstances where the Applicant commences work before his benefits were cancelled, departmental policy guidelines stipulate that the “start day” is to be calculated in accordance with the following provisions:
“The start day of a person’s gainful employment for the Job Commitment Bonus is either:
·The first day a person commenced a nil rate of payment where the person starts employment before their income support payment cancels, or the start date of employment where the person starts employment after their income support payment cancels.”[22]
[my emphasis added]
[22] See Exhibit 6, T2, SSCSD Decision at [17]; and also T8, ARO decision at p 85.
According to Centrelink records the Applicant’s Newstart allowance went to zero rate on 23 October 2014.[23]
[23] See Exhibit 6, T12, p 103.
I am therefore satisfied that the Applicant’s start day was 23 October 2014.
Accordingly, the Applicant started gainful work one day prior to the end of the continuous 12 month period contemplated by section 861(1)(b).
I find that Issue 2 is not satisfied.
Remaining Issues
Given Issue 2 was not satisfied for the reasons outlined in the paragraphs above, it is not necessary to consider Issue 3 as the first three issues are cumulative requirements. Likewise, any consideration of Issue 4 is only warranted upon the due satisfaction of each of Issues 1, 2 and 3.
CONCLUSION
I therefore find that the Applicant does not satisfy the requirements set out in section 861 of the Act to qualify for Job Commitment Bonus.
The decision under review is affirmed.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of
Senior Member T. Tavoularis

..............................[sgd].....................................
Associate
Dated: 14 March 2017

Date of hearing: Friday, 3 March 2017

Advocate for the Applicant: Penelope O'Neill

Solicitors for the Respondent: R. McQuinlan, DHS - FOI and Litigation Team

[2017] AATA 323

14 March 2017

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Jurisdiction

Date of hearing:	Friday, 3 March 2017
Advocate for the Applicant:	Penelope O'Neill
Solicitors for the Respondent:	R. McQuinlan, DHS - FOI and Litigation Team