Secretary, Department of Employment, Education, Training and Youth Affairs v Baker, Melita

[1997] FCA 807

FEDERAL COURT OF AUSTRALIA

SOCIAL SECURITY - Newstart Allowance - appeal from Administrative Appeals Tribunal - Case Management Activity Agreement - clause in agreement requiring attendance at literacy assessment program - failure to attend on stipulated date - new date not communicated to respondent in writing - whether requirement that variation of agreement by department be in writing - whether attendance at literacy assessment program an “activity” - assessment prerequisite for assessing respondent’s capabilities and recommending suitable training program - breach of cl 2 and not cl 1 of agreement as argued by applicant - appeal allowed

Employment Services Act 1994 (Cth) ss 38(2), 39(1), 43(1)(a), 45(5), 45(6),

Student & Youth Assistance Act 1993 (Cth) s 162

Re Secretary, Department of Employment, Education, Training & Youth Affairs v Ruiz
(1996) 41 ALD 627

SECRETARY, DEPARTMENT OF EMPLOYMENT,
EDUCATION, TRAINING & YOUTH AFFAIRS v BAKER

NO TG 6 of 1997

JUDGE:	HEEREY J
PLACE:	MELBOURNE (heard in Hobart)
DATE:	15  AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
TASMANIA DISTRICT REGISTRY	)  NO. TG 6 of 1997
)
GENERAL DIVISION	)

BETWEEN:              

SECRETARY, DEPARTMENT OF
EMPLOYMENT, EDUCATION,
TRAINING AND YOUTH AFFAIRS

Applicant

  AND:  

MELITA BAKER
Respondent

JUDGE:	HEEREY J
PLACE:	MELBOURNE
DATE:	15 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. Appeal dismissed with costs including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
)
TASMANIA DISTRICT REGISTRY	)   NO. TG 6 of 1997
)
GENERAL DIVISION	)

BETWEEN:	SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS Applicant
AND:	MELITA BAKER Respondent

JUDGE:	HEEREY J
PLACE:	MELBOURNE (heard in Hobart)
DATE:	15 AUGUST 1997

REASONS FOR JUDGMENT

The applicant appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 11 April 1997.  The Tribunal set aside a decision of the Social Security Appeals Tribunal affirming a decision made by the applicant's delegate to cancel the respondent's youth training allowance.  The Tribunal substituted a decision that the respondent's youth training allowance not be cancelled as a consequence of her failing to attend for an assessment on 11 June 1996. 

Background
The respondent was born on 15 August 1979.  She ceased education after Year nine.  In May of last year she had been unemployed for a little under a year and was not living at home.  On 3 May 1996 she entered into a Case Management Activity Agreement (CMAA).  That agreement relevantly provided as follows (handwritten parts are italicised):

Case Management Activity Agreement

Return to Work Plan - The aim of this Agreement is to get a job for the jobseeker.  If this is not immediately available activities to make the jobseeker job ready should be agreed e.g. training or work experience.

...

Jobseeker's name  CM Organisation's name

This Agreement is between

Melita Baker              and                  E.A.A.

Address  Address

16 Launde Avenue  1 Bligh Street
           Clarendon Vale  7109  Rosny Park  7018

Jobseeker ID  Case Management
  Organisation ID

LU 83507D  TEA504

Declaration  Jobseeker to complete

1.        I will do everything I can to get a job and I am willing to undertake suitable paid work.

2.        I will undertake the following activities within the timeframes specified to help me get a job. 
(Declarations continued over page)

No       Activity that needs to be done to gain a job, (if insufficient space attach additional pages)

i          I agree to report my efforts to my Case manager

ii         I agree to attend participate fully and complete all components of the What Next   Program at Colony 47.

iii         ...

iv        I agree to attend, participate fully and complete all components of the Adult Literacy and Basic Education Assessment and to complete any training program they recommend

A few days before the date on which the respondent was to attend the Adult Literary and Basic Education Assessment (ALBEA) the respondent's boyfriend was injured in a car accident.  Her case manager, Ms I R Taylor, learned of this and made arrangements for the applicant to undertake the ALBEA on 11 June.  Before the Tribunal there was a written statement from the respondent as to her non-attendance as follows:

I did not receve [sic] no letter about this course so I rang Rosemary [the case manager] the day before I was ment [sic] to go but she was not in so I left my number but did not ring back.

The case manager recommended that the respondent be terminated from case management for failing to comply with her obligations. On 27 June 1996 the delegate of the applicant made a decision to cancel the respondent's youth training allowance.  The decision was made under s 162 of the Student and Youth Assistance Act 1993 (Cth) which provides:

If the Secretary is satisfied that a youth training allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this part, the Secretary is to determine that the allowance is to cancelled or suspended. 

Section 45(5) and (6) of the Employment Services Act 1994 (Cth) relevantly provide:

(5)  The person is not qualified for a newstart allowance or a youth training allowance in respect of a period unless (in addition to meeting any other requirements set out in the Social Security Act 1991) or Part 8 of the Student and Youth Assistance Act 1973, as the case may be):

(a)...

(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; and

(c)       ...

(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 within the person's control; or

(b)       the circumstances that prevented the person from complying were reasonably foreseeable by the person

The Tribunal's Decision
The Tribunal found that the respondent's explanation for non-attendance at the ALBEA on 11 June 1996 was unreasonable.  The Tribunal considered that the respondent should have attended for the assessment regardless of whether she had not received a written reminder and whether or not the case manager had returned her call.  The Tribunal then considered cl 2(iv) of the agreement, which referred specifically to the requirement to attend the ALBEA.  The Tribunal concluded that because the clause referred to 20 May 1996 and not 11 June 1996, her failure to attend on the latter date could not justify a finding of failure to take reasonable steps to comply with that clause. 

Section 43(1)(a) of the Act provides that a CMAA may be varied or suspended, cancelled or reviewed. Although the CMAA itself is to be in writing (s 38(2)(g)) s 43(1)(a) does not specify that variation or suspension need be in writing. Although no doubt a written record of any variation would be sensible administrative practice, practical considerations suggest that simple variations of the kind that occurred in this case might be made orally. There is in my view no warrant for reading into the clear words of s 43(1)(a) a requirement that variation or suspension must be in writing. But in any event the applicant did not seek to challenge that aspect of the decision.

The Tribunal then considered cl 1 of the agreement, the general promise to "do everything I can to get a job".  The Tribunal decided, on two grounds, that cl 1 could not be invoked to support a finding that the respondent had failed to take reasonable steps to comply with the CMAA.  The first ground was an evidentiary one, namely that the respondent's conduct had not breached cl 1.  The Tribunal said:

In the light of that evidence, I do not believe that attending for the assessment was something that the (respondent) could have done "to get a job" within the meaning of paragraph 1 of the agreement.  Having one's education and literacy levels assessed in order that one's case manager is better informed is, in my view, a preliminary step that does not form any part of attempting to obtain employment.  The distinction between  undertaking such a preliminary step and attempting to obtain a job is analogous to the distinction in the criminal law betweens [sic] acts of preparation and attempts to commit crimes.  Failing to show up for the assessment did not amount to a failure to take reasonable steps to do everything the applicant could to get a job.

The second ground was that as a matter of law cl 1 of the CMAA was not authorised by s 39(1) of the Act. After referring to the terms of s 39 the Tribunal said:

The sorts of terms authorised by s.39(1) are terms requiring the unemployed person to take specific steps for the purpose of securing employment.  Clause 1 of the agreement involves a general promise to do everything the unemployed person can to get a job.  Such a promise does not involve a promise to undertake any of the individual activities listed in paragraphs (a) to (j) of the s.39(1).  There is no other provision in s.39 that could be relied upon as a statutory basis for clause 1.  I therefore do not believe that clause 1 forms part of the agreement, or constitutes a term of the agreement for the purposes of s.45(5)(b).  I believe that this conclusion is consistent with the view Senior Member Lewis took in relation to other pre-printed general clauses in Case Management Activity Agreements in Re Secretary, Department of Employment, Education, Training and Youth Affairs and Ruiz (1996) 41 ALD 627.

Conclusion
In my opinion cl 1 of the CMAA is valid, but I think its source is to be found not by reference to some or all of the enumerated paragraphs (a) to (j)in s 39(1), but rather in the first sentence of the opening words. The object of the agreement is "to be directed to securing employment for the person". It is clear from the legislation as a whole that the fundamental objective of the legislation is sustainable employment (see s 37(1)). Obviously that purpose cannot be achieved without the person in question doing everything he or she can to get a job. Clause 2 which contains the specific agreements negotiated in the particular case (see s 39(2)) has to be read subject to that general obligation. That is made quite explicit by cl 3 in which the person concerned states "I agree to accept a suitable job offer that becomes available even if I am doing an approved activity or training".

As counsel for the respondent pointed out, paragraphs (a) to (j) of s 39(1) are all concerned with categories of activity. A particular proposed activity is to be discussed between the person concerned and the case officer and, if considered appropriate, that activity is specified in the CMAA. It would be contrary to the way the CMAAs are to operate if the agreement simply set out the statutory language of 39(1)(a) to (j). What happened in the present case is what the legislation contemplates. The case officer, after discussion and agreement with the respondent, selected with two specific activities.

Contrary to the view of the Tribunal, I think that attendance and participation in the ALBEA was an activity which fell within s 39(1)(e). Deficiencies in literacy or basic education would plainly be a disadvantage in the labour market. Such disadvantage could be ameliorated by attending a training program. Before attending such a program it would obviously be necessary to have some kind assessment of the person concerned to see what her existing capabilities were and what would be an appropriate program. The Tribunal’s decision to the contrary was a question of law, since it involved the application of a statutory criterion to facts fully found: Hope v Bathurst City Council (1980) 144 CLR 1
In my opinion there was a breach of the CMAA, but it was a breach of cl 2(iv), not cl 1.  As already mentioned I think the CMAA had been validly varied to alter the date on which the respondent was to attend the assessment. 

However the applicant did not seek to upset the decision on the grounds that I have mentioned, the possibility of which was discussed in the course of argument.  This of course is no criticism of counsel for the applicant, whose client understandably was primarily concerned with the Tribunal's holding as to the validity of cl 1.

As a consequence therefore the application will be dismissed with costs, including reserved costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:             15 August 1997

Counsel for the Applicant:	Peter Hanks
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Roland Browne
Solicitor for the Respondent:	Legal Aid Commission of Tasmania
Date of Hearing:	23 July 1997
Date of Judgment:	15 August 1997