Piotto and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 394

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 394

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  2008/0035

)

GENERAL ADMINISTRATIVE DIVISION		)
Re		LUIGI PIOTTO

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:1 May 2008

Place:Melbourne

Decision: For reasons given orally at the hearing the Tribunal affirms the decision under review.  

(sgd) G.D. Friedman

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2008/0035

PIOTTO

and

SECRETARY, DEPARTMENT OF
EDUCATION, EMPLOYMENT AND
WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

THURSDAY, 1 MAY 2008

MR L. PIOTTO appears in person
MR T. DE URAY appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [12.28 pm]

MR FRIEDMAN:   In this case the decision under review is whether Mr Piotto failed to comply with the requirement to enter into an activity agreement without reasonable excuse and whether the participation failures were correctly imposed on 14 August 2007, 6 September 2007 and 5 October 2007.

I have heard detailed evidence from Mr Piotto in relation to all these matters.  It would seem to me that, basically, if I could summarise his arguments: he is saying, first of all, that MatchWorks acted illegally and was vindictive towards him, and he used the word “vindictive” a number of times, and claimed that, among other things, that they, as an agency used by Centrelink, was, in fact, a money-making venture and it was in their interests to get him to do various things which he really did not feel was appropriate for him to do.

The other main argument that Mr Piotto put forward was that the terms of the activity agreements were unreasonable.  If they are unreasonable then he should not be made to sign them and, therefore, he did not sign them because they were unreasonable and that he was being punished for not doing everything that MatchWorks said he should particularly being forced to work for the dole, among other things.

I am not satisfied that anything that Mr Piotto has said to me today shows that MatchWorks was acting illegally.  I appreciate that Mr Piotto is not a lawyer, but he has undertaken some rather detailed research in his submissions and that was noted during the cross-examination.  But it is one thing to produce various cases that seem to support a particular assertion, it is another thing to suggest that a job network provider, in this case MatchWorks, has acted illegally.   I have listened carefully to the evidence that Mr Piotto has given, but I do not accept that they have acted illegally.

I accept that he had serious disagreements with their methods and as I have just mentioned, he believes that they were out to make money.  Well, I do not think they deny that they were out to make money.  Whether that translates into forcing him to do things that he should not be made to do is a separate issue.  In terms of the unreasonableness of the activity agreements, I have listened carefully to the arguments that Mr Piotto has raised, particularly in terms of some of the conditions that were on the agreements appeared to Mr Piotto to be sometimes ambiguous, sometimes unclear, sometimes not appropriate and sometimes, he said, left him in a position where had he complied with the conditions as written, he would have been liable to be breeched anyway, which, in fact, did happen.

Clearly, in conditions, or in agreements of this kind, there is a limit to what can be put into and, I think there is a limit to what can reasonably be expected to be included, such as reporting requirements, those sort of things.  I mean, if you include everything of a particular day and if the buses are not running, or if the weather is wet and you cannot get to a certain place, I mean, it could go on for a hundred, two hundred pages.  So the question is, what is reasonable.  Now, Mr Piotto thought that a number of those conditions were unreasonable and his way of dealing with it was to cross them out and to insert terms.  Well, either to cross them out because he did not believe they should be in that or to cross them out and to add other conditions which he admitted in cross-examination, he knew it would not be accepted. 

I do not think there is any real disagreement between anyone here in the hearing room that to seek to include conditions such as being paid for lunch and also being paid $17.50 an hour for work for the dole plus $8000, no one in their right mind would consider that to be reasonable and Mr Piotto conceded that.  So it seems to me that for him to say, first of all, “Some of the conditions are unreasonable, I won’t sign,” and then to include conditions which he knew were unreasonable and then to say, “Well, I’m not going to sign them because you have not agreed to these conditions that I have nominated,” to me is just - that in itself is unreasonable.

Now, the question of whether his refusal to sign the agreements is unreasonable is included or is contained in legislation, which is referred to in the statement of facts and contentions and is also in the Social Security Appeals Tribunal decision and that is section 624(2)(A) which says:

The Secretary must, by legislative instrument, determine matters that the Secretary must take into account when deciding whether a person had a reasonable excuse.

And then it refers to Social Security (Reasonable Excuse) (DEWR) determination 2006 and the factors (a) to (i) and they refer to:

… living in non-permanent accommodation on the streets, literacy skills, illness impairment, psychological drugs, unforeseen family … 

In my view, none of those factors has been raised by Mr Piotto and none of those, in my view, applies in this particular case.    If you go back to the three matters that are in dispute in this case, the first participation failure on 14 August 2007, Mr Piotto said basically that he put down the tape recorder and said to them, “I am taping this,” and they said, “Well, no, you are not.”   I agree with Mr de Uray’s submission on this matter that, basically, I think Mr Piotto was really holding them to ransom, saying, “Look, if you do not let me do it, I am not going to sign,” rather than saying to them, “Okay, you do not me to put the tape recorder on.  How can we deal with this?  Can I take written notes of our conversation?”  Something like that.  But just to say, “Well, if you are not going to let me use the tape recorder, I am not going to sign,” to me I do not think that shows good faith on the part of Mr Piotto or that MatchWorks acted unreasonably in that case.

I have already referred to the conditions that he sought to insert on the activity agreements, so in all the circumstances for the reasons that I have mentioned and are in contained in the statement of facts and contentions,  I find that there was - that he failed to comply with the requirements to enter into the activity agreement on 14 August 2007.

In relation to the second participation failure, he was required to attend an appointment.  He failed to comply with the requirement to enter a new agreement for much the same reasons as the first one.  He chose to put conditions which were not included there which he - once again, some of them I accept he genuinely believed were unreasonable, but I do not think that -  I do not agree that there was any basis for him forming those views.  In my view they were not unreasonable, therefore, his failure to sign constituted a second participation failure.

The third participation failure alleged on 5 October 2007 was with, as a result of a letter from Australian Education Industry Centre writing to him to attend an appointment on 5 October requiring him to enter into an agreement on that date.   In my view, he has, once again, failed to comply with the conditions and I do not believe that his amendments were reasonable and, therefore, his failure to sign the activity agreement on that date constituted a third breech.

I have already referred to the claim that MatchWorks was acting illegally somehow.  It is claims that there was not an instrument of authority or something that gave them legal authority to act for Centrelink.  I am not persuaded that that is the case at all.  In my opinion, there is nothing that would satisfy me that MatchWorks was doing anything else than performing the task that it had been required to do by Centrelink.  Unless there is any particular matter that Mr Piotto was able to produce to me to show why that is not the case, then I believe that is the case.

In terms of altering conditions generally, Mr Piotto said that he really wanted some negotiating ability and that is one of the reasons that he put conditions that he knew would not be accepted.   There is reference made to both in the Authorised Review Officer’s decision and in the statement of facts and contentions to the case that was re Dunn before this tribunal in 2004.   I agree with the conclusions reached by the tribunal on that day or in that decision that the agreements, they are not documents from which negotiation is able to take place to the extent that a job seeker can just say, “Well, I do not agree with that condition,” and, therefore, refuse to sign it.  Certainly, there is scope for some discussion between the parties and that’s the case with any agreement.   But I do not believe that extends to just saying to them, “Well, if you do not agree with the condition that I have suggested, I am not going to sign it.”  So I agree with re Dunn.

For those reasons, I find that the three participation failures were correctly established and that the correct and preferable decision in this case was the one that was reached by the Authorised Review Officer as affirmed by the Social Security Appeals Tribunal and I am affirming the decision under review.

END OF EXTRACT [12.40 pm]