Secretary, Department of Employment, Education, Training and Youth Affairs v Fitzalan
[2000] FCA 1061
•4 AUGUST 2000
FEDERAL COURT OF AUSTRALIA
Secretary, Department of Employment, Education, Training & Youth Affairs v Fitzalan [2000] FCA 1061
SOCIAL SECURITY )
EMPLOYMENT ) – newstart allowance and case management system – Case Management Activity Agreement – relationship between s 45(5) and s 45(6) of the Employment Services Act 1994 – whether a person who has failed the test of s 45(6) can still succeed under the general provision of s 45(5)(b) – discussion of conflicting authority on this point – whether an agreement expressed by the words “I will do everything I can to get a job” is valid or void for uncertainty – whether work was “unsuitable” in the particular circumstances because it involved staying away from home four nights in the week during a period of three to four months and also some overtime – discussion of the meaning of “unsuitable” having regard to the objects of the legislation and of the Case Management Activity Agreement – circumstances in which a person might satisfy s 45(5)(b) though not satisfying s 45(6) – whether it was open to the AAT to conclude that the unemployed person had satisfied s 45(6) or s 45(5)(b) – circumstances in which it was “appropriate” within s 44(4) of the Administrative Appeals Tribunal Act to set aside the Tribunal’s decision without referring it back for reconsideration and to substitute the appropriate decision.Administrative Appeals Tribunal Act 1975 (Cth), s 44(1), (3), (4)
Employment Services Act 1994 (Cth), ss 37(1), 39(1), 42, 45(5)(b), 45(6)Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426 followed
Secretary, Department of Employment, Education, Training and Youth Affairs v Messenger (1997) 48 ALD 26 followed
Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 followed
Garnys v Secretary, Department of Employment, Education, Training and Youth Affairs (1999) 164 ALR 319 discussed, in part not followed
Secretary, Department of Employment, Education, Training and Youth Affairs v Baker (1997) 48 ALD 33 followed
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 applied
Meehan v Jones (1982) 149 CLR 571 applied
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 appliedSECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS v BARRY JAMES FITZALAN
NG 996 of 1997
BURCHETT J
4 AUGUST 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 996 of 1997
BETWEEN:
SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS
ApplicantAND:
BARRY JAMES FITZALAN
RespondentJUDGE:
BURCHETT J
DATE OF ORDER:
4 AUGUST 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The decision of the Administrative Appeals Tribunal be set aside;
2.In lieu of the decision of the Tribunal, the decision of the Social Security Appeals Tribunal dated 7 August 1996 be set aside, and in lieu thereof, the decision reviewed by the Social Security Appeals Tribunal to cancel payment of newstart allowance to Mr Fitzalan be affirmed;
3.There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 996 of 1997
BETWEEN:
SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS
ApplicantAND:
BARRY JAMES FITZALAN
Respondent
JUDGE:
BURCHETT J
DATE:
4 AUGUST 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). By that section, it is referred to as an “appeal”, although it is in the original jurisdiction of the Court. By s 44(1), the “appeal” is “on a question of law”, and by subs (4) the Court “may make such order as it thinks appropriate by reason of its decision”. In this case, the hearing in the Tribunal was conducted by a Member, with the consequence, under s 44(3), that I was able to hear the matter, sitting alone.
The case before the Tribunal arose out of the attempted implementation by the applicant’s Department of the case management system for which the Employment Services Act 1994 (Cth) provided. The focus of that system was on a “Case Management Activity Agreement” which, by s 39(1), was “to be directed to securing employment for [an unemployed] person” receiving what was called a “newstart allowance” pursuant to the Social Security Act 1991 (Cth). Activities a Case Management Activity Agreement may require a person to undertake include “a job search” (s 39(1)(a)) and “measures designed to eliminate or reduce any disadvantage the person has in the labour market (other than measures compelling the person to work in return for payment of … newstart allowance, under the Social Security Act 1991)” (s 39(1)(e)).
The crucial provisions of the Employment Services Act, for the purposes of the present case, are contained in subss (5) and (6) of s 45:
“(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)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; and
…
(6)For the purposes of paragraph (5)(b), a person is taking reasonable steps to comply with the terms of the 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.”
The respondent Mr Fitzalan having failed to pursue a job interview, as requested by a case manager pursuant to the terms of a Case Management Activity Agreement into which he had entered, the Employment Secretary took the view that he was not satisfied Mr Fitzalan was “taking reasonable steps to comply with the terms of the Agreement” within s 45(5)(b), and therefore cancelled payment to him of a newstart allowance.
The route by which this matter has arrived at the Court is somewhat tortuous. On 31 October 1995, the decision was made within the Department “to cancel [Mr Fitzalan’s] Newstart Allowance for failing to comply with the terms of [his] Case Management Activity Agreement”. Mr Fitzalan sought a departmental review of this decision, and on 27 February 1996, the Authorized Review Officer for the Western NSW Area, Mr Savage, wrote to him affirming the decision. Mr Savage’s letter pointed out that Mr Fitzalan had been registered with the Commonwealth Employment Service for 311 weeks; that his Case Management Activity Agreement provided, in clause 1, “I will do everything I can to get a job and I am willing to undertake suitable paid work”; that on 27 October 1995 his case manager advised him by telephone of a labouring/plant operator’s position with the Roads and Traffic Authority (RTA) at Nyngan, where he lived; that he agreed to attend the RTA depot at Nyngan for a job interview that day; and that he attended and was given a list of interview questions, but before the interview panel had an opportunity to call him in for interview, he telephoned and declined the position. Mr Savage noted:
“In your phone conversation with me on 24 November, 1995 you told me that:
·a lady rang from the Bourke CES and told you to go to the RTA about a job;
·she did not tell you that it would require camping or weekend work;
·you attended the interview but as the job involved camping away 90% of the time and may require you to be away from home 3 to 4 weeks at a time you felt it was unsuitable;
·you have recently purchased your own home and wanted to work around the house on weekends.
…
Nyngan certainly qualifies as an area of limited employment opportunities and indeed the length of unemployment you have experienced, currently 329 weeks, is indicative of this situation.
You are registered with the CES for labouring work. The position with the RTA was listed as labourer/plant operator. The hours per week were full-time and the work was expected to last for 3 to 4 months. I am satisfied the position with the RTA was suitable employment that you were capable of performing.
In order to clarify the ‘camping out’ and ‘being away from home for 3 to 4 weeks at a time’ you discussed with me, I have made inquiries with the contact officer at the RTA Depot in Nyngan.
The job involved living away from home on weekdays during which you would be provided with accommodation and full board in motels at no expense to you.
Weekend work was available on a regular basis, was classified as overtime and subsequently attracted the relevant penalty rates of pay. The same accommodation and board conditions applied as for weekdays. Work on weekends would be offered when the amount of outstanding work didn’t justify the need for a return to Nyngan for the weekend.
…
Having considered your excuses for not complying with the requirements of your Case Management Activity Agreement I am not satisfied that they are reasonable.”
Mr Fitzalan lodged an application for review of this decision by the Social Security Appeals Tribunal, which set aside the decision and sent the matter back to the Secretary for reconsideration “with directions that Mr Fitzalan has not failed to take reasonable steps to comply with his Case Management Activity Agreement”. At the hearing in the Tribunal, as is recorded in its reasons, Mr Fitzalan “said that he basically agreed with the details in the authorised review officer’s findings except that he said that he phoned the RTA on the same day as the interview. After the interview he was given a questionnaire which he read and which mentioned the camping away aspect of the job. He said that he tried to see the person who had interviewed him immediately but there were other people there and he went home and phoned the RTA from home. … He said that he does not like camping away. He likes to sleep in his own bed.” The Tribunal also noted a complaint that Mr Fitzalan’s dogs “would be difficult for other people to feed”, but it added that the tenant of a room at his house (who is actually his girlfriend) “would be able to feed the dogs because she is familiar with them”. The Tribunal referred to a mowing obligation which Mr Fitzalan had accepted as a part-time activity; however, the mowing was very infrequent and the times were flexible. According to the Tribunal, Mr Fitzalan “was concerned about the aspect of this particular job being away 90% of the time. If it had involved being away a week here or there he would have considered it to be allright [sic].” The Tribunal expressly accepted “Mr Fitzalan’s evidence that he was not advised that the camping out aspect of the job was on a short-term (3 - 4 month) basis.”
The Tribunal referred to clause 1 of the Case Management Activity Agreement, and continued:
“In Mr Fitzalan’s case the tribunal is of the opinion that he did everything he could to get a job in this particular instance. He attended the interview as requested, he made enquiries about the job and found out that the job involved extensive living away from home for what he thought was an indefinite period.”
The Tribunal went on to conclude that the work in question “was not suitable in that it involved him being away from home 90% of the time”; and decided:
“The tribunal is of the opinion that Mr Fitzalan did all he could regarding this job until he was in a position to ascertain that the job was not suitable. Therefore the tribunal is satisfied that Mr Fitzalan was taking reasonable steps to comply with the terms of the agreement and satisfies section 45(5)(b) of the Act.”
It may be observed, in passing, that this reasoning is plainly flawed. It equates accommodation and full board in motels with “camping out”; it ignores the short-term nature of the job (for a period of 3 to 4 months) on the ground that Mr Fitzalan had not been told “the camping out aspect of the job was on a short-term (3 - 4 month) basis”; and it treats what turned out to be four nights per week staying in motels (as will appear) as amounting to 90% of the time. Most importantly, the Tribunal gave no consideration at all to the real question raised by the whole of the evidence – whether Mr Fitzalan had done everything he could to get a job, when he had not pursued the matter with sufficient seriousness to avoid the misapprehensions mentioned, and had not been prepared to wait his turn (for a period, on the evidence, of ten minutes) at the RTA depot for an interview at which he would have learned the true position.
But it is not the decision of the Social Security Appeals Tribunal that is now in issue. The next step was the Department’s application to the Administrative Appeals Tribunal, which is the subject of the proceeding before me. At the hearing in the Administrative Appeals Tribunal, Mr Fitzalan did not appear, either in person or by any representative. Evidence was given by the case manager, Mrs O’Sullivan, and by an officer of the Roads and Traffic Authority, Mr Gelbart.
Mrs O’Sullivan gave evidence of the negotiation of the Case Management Activity Agreement at a time when she also ascertained details of Mr Fitzalan’s position. He was born on 15 May 1970, and his schooling had proceeded to the level of Year 10. Nevertheless,
“his literacy skills were going to be a definite barrier”, and Mrs O’Sullivan said she suggested “he have a literacy assessment with our assessor at Nyngan and that way we could work out where he was and if we could get him into some type of literacy course to address those problems”. The need for an assessment was written into the Case Management Activity Agreement. Mrs O’Sullivan discussed his last full-time employment, for approximately 12 months as a tyre fitter, when Mr Fitzalan “indicated that he left that employment due to reading and writing”. He had previously done farming, tractor driving, fencing and stock work on a casual basis. Mrs O’Sullivan also gave evidence about the opportunity to apply for work with the RTA. She considered Mr Fitzalan “was suitable for this vacancy”, it being a labouring position the essential criteria for which were fitness and a class 1A driver’s licence, criteria he satisfied. She telephoned Mr Fitzalan who “indicated that he would attend”. Mrs O’Sullivan’s note of what occurred, made four days later, on 31 October 1995, reads:
“Client was advised of interview time and address to attend an interview with the RTA in Nyngan on the 27-10-95. Client attended the RTA depot on the 27-10-95 was given a list of questions to be asked at interview. Before the interview panel had an opportunity to call him in for interview, he phoned and declined the position.”
Mr Gelbart gave evidence that two positions were being interviewed for, both based at Nyngan. The interview panel had five people for interview for these positions, whose names had been obtained from the Commonwealth Employment Service. The practice was that an officer “would hand them a list of the questions that we intended to ask at the interview and they were told to have a look at the questions for about ten minutes to get themselves focussed on what they intended to say and they would be called in about ten minutes from that time by the panel to interview them.” Essential criteria for the position, according to Mr Gelbart, were “ability to understand and carry out instructions, willingness and capacity to participate in the work practices of the RTA, ability to work overtime and stay away from home on a short notice, class 1 driver’s licence and must reside in Nyngan”. The reason for requiring residents in Nyngan was explained as follows:
“We transport them from Nyngan to the work site in a bus that we have and return them back to the Nyngan depot at the finish of the job. By appointing people external to Nyngan would incur greater liability for travelling expenses upon the Authority.”
There were 16 wages employees in the crew, the majority of them married. “Whenever the work is away from Nyngan we would put them up in motels and they are provided with a daily allowance of about $45 to purchase their own meals.” Asked about the practice “as far as how often they have to ‘camp out’,” Mr Gelbart said:
“When work takes them away from Nyngan we transport them to the work location normally on the Monday morning – early on the Monday morning – and then after work on Friday because they normally cease at twelve o’clock on Friday. We transport them back to Nyngan on the bus.”
He said the normal practice would be that “they would only spend four days away from home”.
Concerning the interview in question, Mr Gelbart said of Mr Fitzalan:
“He apparently came to the Motor Registry and gave his name to the Customer Services Officer, was handed a copy of the questions, but approximately ten minutes later when the panel called him for interview we were advised that he had left the area.”
The questions handed to applicants, Mr Gelbart said, were the following:
“1. a. Are you physically well?
b.Do you have a good sight?
c.Do you have good hearing?
d.Have you ever had a back injury?
2.Have you ever worked as part of a team?
3.The Roads and Traffic Authority has a number of Policies and Procedures which it requires its staff to abide by.
These include:-
Equal Employment Opportunity
Occupational Health & Safety including Workplace Rehabilitation of injured workers
Smoke Free Workplace
Code of Conduct and EthicsIf appointed to this position you will receive copies of these policies.
Are you willing to abide by them?4.Have you any experience at receiving and carrying out both verbal and written instructions?”
5.What is your residential address?
6.a. Do you have a current valid drivers licence?
Class Licence No. Exp. Date
b.Do you have any Workcover or DIRE Tickets?
7.Have you had any experience operating both small and large plant?
8.Do you have any experience in Road Construction activities?
9.Are you able to work OT and stay away from home on short notice [?]”
It will be observed that the only question making any reference to being away from home is question nine, and that this question conveyed no detailed information.
The reasons of the member of the Administrative Appeals Tribunal refer to a letter Mr Fitzalan had sent with his appeal to the Social Security Appeals Tribunal. That letter asserted:
“On attending the RTA office I was given questionnaire to complete whilst I waited for 3 people before me.
On answering the questions, the last question was ‘are you prepared to work/live out of town on weekdays and weekends?’ I had previously told my case manager Louise O’Sullivan that I was not prepared to live away from home for any length of time. As I have commitments such as feeding and watering my 4 large dogs everyday. I also have a contract to keep with the Department of Housing mowing the lawns at the 2 separate pensioner unit grounds two days every fortnight”.
Although this letter concedes that the problem of the question arose before interview and while Mr Fitzalan “waited for 3 people before me”, it fails to quote the question accurately, and it raises difficulties which had no substance, since there was someone available to attend to the dogs, and the times when mowing was required to be done were neither fixed nor frequent.
The Tribunal recounted the evidence put before it without suggesting, in any way, that this evidence was not accepted. There was, indeed, no attack upon its accuracy. Nor did the Tribunal endorse the proposition that a requirement to sleep four nights in the week at a motel for much of a period of three or four months of employment, with some weekend overtime, would be “unsuitable” for Mr Fitzalan. But it took two different points, neither of which appears ever to have been taken by Mr Fitzalan himself. Of course, at the hearing before the Administrative Appeals Tribunal, Mr Fitzalan was not present. The Member’s first point was that “the RTA temporary job for 3-5 [sic] months does not meet the general objective” of the Employment Services Act 1994, as set out in s 37(1), “of assisting a participant in the case management system to obtain sustainable employment”. I am unable to accept as a matter of the true construction of clause 1, which is a matter of law, that the obligation to “do everything I can to get a job” is attenuated in the way the Tribunal suggests. Even if the language of s 37(1) is somehow relevant to this question, it cannot be said that the obtaining of regular employment as a member of a work crew for a period of three months or more would not have been of assistance to Mr Fitzalan in obtaining “sustainable employment”. He had been out of regular work for something like six years, and any significant job could reasonably be regarded as likely to improve his morale, and also to make him a more desirable applicant from the point of view of another prospective employer. In any case, there is nothing in the Employment Services Act to confine suitable employment to employment of some particular duration.
Then the Tribunal turned to s 42(1)(a) of the Employment Services Act. This is a provision designed to provide some degree of definition of an obligation, implied in a Case Management Activity Agreement by s 39(2)(a), to “accept any offer of paid work other than work that is unsuitable to be undertaken by the person” who has entered into such an agreement. It is not in terms made applicable to other provisions; in particular, it is not in terms made applicable to clause 1 of the present agreement. (The implied term is, of course, inapplicable here, since there was no “offer”.) However, it may be that clause 1 should be construed in the light of s 42(1). Section 42(1)(a) provides:
“Subject to subsection (2A), for the purposes of paragraph 39(2)(a), particular paid work is taken to be unsuitable for a person if, and only if, in the Employment Secretary’s opinion:
(a)the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer; or
…”
It should be noted that the reference to “subsection (2A)” is the result of a parliamentary oversight, the proposed subsection (2A) never having been enacted. The same is true of subs (2B), which is referred to in s 42(1)(i).
The use the Tribunal made of s 42(1)(a) was to link it with the job criteria of “ability to understand and carry out instructions” and “willingness and capacity to participate in Safe Work Practices”. Reference was made to the part of the questionnaire in which an applicant for employment is told that copies of policies on equal opportunity and occupational health and safety, including work place rehabilitation, will be received upon appointment, and to the part of the questionnaire which asks whether the applicant has “any experience at receiving and carrying out both verbal and written instructions”. The Tribunal concluded:
“Section 42 of the Employment Services Act sets out when particular paid work is unsuitable and subsection (1)(a) provides particular paid work is taken to be unsuitable for a person if the person lacks the particular skills, experience or qualifications that are needed to perform the work and no training will be provided by the employer. Having regard to the literacy difficulties of the Respondent … the Tribunal finds it is not satisfied that the position was ‘suitable’ for the Respondent. … Having reached the foregoing it is unnecessary for the Tribunal to then consider the further issue of whether the Respondent took ‘reasonable steps to comply’ with the CMAA.”
There are a number of difficulties with this reasoning. Not only does it raise (reversing the onus to explain the withdrawal from the interview) an objection never suggested by Mr Fitzalan himself; it assumes without any evidence at all that no relevant training would be provided by the employer. There was simply no evidence that the employer would not give appropriate information in connection with instructions, and appropriate training and information concerning safe work practices. Nor was there any evidence to suggest that Mr Fitzalan would be unable to understand proper instructions and information. After all, he held a driver’s licence; he had pursued a welding course (on any view a dangerous activity); he had performed various tasks in part-time employment that must have required instructions and the pursuit of safe practices. Furthermore, not only had he not alleged that his literacy difficulties were of the magnitude the Tribunal seems to have been assuming; he asserted he had read and understood the questionnaire in order to ascertain that the job was unsuitable, as he claimed, for his own reasons, which the Tribunal presumably did not accept. However, the fundamental error in the Tribunal’s reasoning is that it ignores the question whether Mr Fitzalan was in breach of his agreement to “do everything I can to get a job” when he simply aborted his interview without ascertaining the full details of the job in question, including matters such as the nature of any training and instruction he might receive. In my opinion, the Tribunal’s conclusion was not open to it, as a matter of law.
There was considerable debate, at the hearing, about the operation of s 45(5)(b) of the Employment Services Act, and particularly the interaction between that provision and s 45(6). The two subsections are certainly not models of clarity. In subs (5), the word “unless” is used to express a condition upon which qualification absolutely depends: a “person is not qualified … unless … ”. In subs (6), the same word is used to express a reservation with respect to a statement that the condition is satisfied; but it is not made clear whether the condition can be satisfied in any alternative way in a case where the reservation applies. In other words, it is not made clear whether subs (6) merely provides one way of satisfying the requirements of subs (5)(b), or whether this is the only way of doing so. The problem has produced some conflict of authority.
In Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426, Mansfield J considered a case the facts of which were tinged with some irony. The respondent had failed to attend an appointment connected with the obtaining of work because he forgot it, being caught up with a different project to obtain work! The failure to attend the appointment being treated as a failure to comply with the terms of his Case Management Activity Agreement, the Administrative Appeals Tribunal, as his Honour pointed out (at 432), held s 45(5) to have operated on the basis that s 45(6) “defines the circumstances in which a person will be found to have failed to have taken reasonable steps to comply with the terms of an agreement”. Thus, according to the Tribunal, a failure to comply within the meaning of s 45(6) having been found, “unless the respondent fell within either subcl (a) or (b) of s 45(6) … then ipso facto there had been a failure to take reasonable steps to comply with the agreement”. Mansfield J rejected this view. His Honour explained (at 436-437) the construction of the provisions in terms which it is desirable to set out at some length:
“It is important to observe that s 45(5)(b) has primacy over s 45(6) of the ES [Employment Services] Act. It is explicit. The consequence which s 45(5) provides for will only arise, relevantly, if the respondent satisfies the Employment Secretary that he is taking reasonable steps to comply with the terms of the agreement. Section 45(6) then provides the threshold over which the Employment Secretary must pass before any onus lies on the respondent to satisfy the Employment Secretary that he is taking reasonable steps to comply with the terms of the agreement. So long as he has not failed to comply with the terms of the agreement, he is necessarily to be taken as taking reasonable steps to comply with the terms of the agreement. If he has failed to comply with the terms of the agreement, he is still to be taken as taking reasonable steps to comply with the agreement if
(a)the main reason for that failure involved a matter that was [scilicet was not] within his control, or
(b)the circumstances that prevented his compliance were not reasonably foreseeable by him.
In a practical sense, therefore, if he has not failed to comply with the terms of the agreement or if any failure was something that he could not reasonably have done anything about, then he is safe from otherwise having to satisfy the Employment Secretary under s 45(5)(b) of the ES Act.
It does not follow that if he has failed to comply with the terms of the agreement, and either that failure was within his control or that the [scilicet or the] circumstances that prevented compliance were reasonably foreseeable by him, then necessarily he will not satisfy the Employment Secretary that he is taking reasonable steps to comply with the terms of the agreement. Section 45(6) of the ES Act is not expressed to be a definition of the circumstances in which there will be the taking of reasonable steps to comply with the terms of the agreement. It could have done so, but it does not. It operates only to prescribe circumstances where a person will be taking such steps.
Consequently, only if a person falls [scilicet fails] under s 45(6) will the operation of s 45(5)(b) arise and then the quality of the conduct of the respondent, or the person in receipt of newstart allowance, will need to be considered in relation to it. If the Employment Secretary were to consider that the fact that a person in receipt of newstart allowance fell within s 45(6) meant that that person, per se, was not taking reasonable steps to comply with the terms of the agreement, I think that would be wrong. If the Employment Secretary imposed the policy that, upon it being determined that s 45(6) was activated adversely to a recipient of newstart allowance, then the decision should be made that the Secretary was not satisfied that the person was taking reasonable steps to comply with the terms of the agreement, then that also would be erroneous. …
It follows that, in my view, the Tribunal erred in the assumption which was made to the contrary. That assumption has clearly tended to colour the approach which the Tribunal took to its consideration of the issues. It is now put by counsel for both the applicant and the amicus curiae that in fact s 45(5)(b) required a determination of a matter of fact by the Employment Secretary which extended beyond subs (6). In other words subs (6) provided a filter through which the conduct of the respondent would have to pass before the person could be called upon to satisfy the Employment Secretary that that person had been taking reasonable steps to comply with the terms of the agreement.”
That the law was correctly stated in Ferguson was expressly accepted by Marshall J in Secretary, Department of Employment, Education, Training and Youth Affairs v Messenger (1997) 48 ALD 26 at 29 and 31, and R D Nicholson J restated the position in Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 in terms which mirror the passage I have extracted from Ferguson. In particular, R D Nicholson J held (at 694):
“The express terms of s 45(5)(b) and (6) of the [Employment Services Act] require that in deciding whether a person is taking reasonable steps to comply with the terms of an agreement a decision-maker is bound to take into account the following factors:
…
(iv)whether, notwithstanding a failure to comply with the agreement which was either within the person’s control or reasonably foreseeable by the person, the person can show that he is taking reasonable steps to comply with the terms of the agreement.”
But the harmony of these decisions is somewhat disturbed if one turns to the decision of Hill J in Garnys v Secretary, Department of Employment, Education, Training and Youth Affairs (1999) 164 ALR 319. His Honour begins (at 325) by stating:
“Untrammelled by authority I would have thought that s 45(6) operated as a definitional section for s 45(5)(b).”
After some expansion of this proposition, he continues:
“This interpretation, which appears to follow inexorably from the language of the section does not seem to be the interpretation which was accepted by Mansfield J in Secretary, Department of Employment, Education, Training and Youth Affairs v Ferguson … .”
Hill J goes on (at 326) to cite much of the passage I have quoted from the judgment of Mansfield J, including the paragraph commencing with the words “It does not follow that …” and the first sentence of the following paragraph. He then expresses disagreement with those parts of the reasons of Mansfield J, commenting:
“It seems to me that s 45(6) is expressed to be a definition of the circumstances in which there will be the taking of reasonable steps to comply with the terms of the agreement and s 45(5)(b) does not raise an independent question. I should, however, say that I do not think it matters in the present case.”
The last sentence of this passage makes it clear that the comment is obiter. It does, however, represent the considered view of his Honour, and is entitled to great respect. That view is repeated (at 327) in the passage:
“If Ferguson is right, it may well be that independently [of subs (6)] the tribunal is required to consider separately whether Mr Garnys took reasonable steps to comply with the terms of the agreement, without reference to s 45(6). As I have already indicated, I do not think this is the correct interpretation.”
But I confess I have some difficulty in identifying the precise point at which Hill J departs from the view of Mansfield J. For in Garnys (at 325), agreement is expressly stated with the proposition that it is a mistaken view to claim “where there was a breach of the agreement ipso facto there would be a failure to take reasonable steps to comply with the agreement unless either subpara (a) or subpara (b) of s 45(6) was made out”. If that is a mistaken view, it must be because subs (6) does not cover the field – it puts a block on the operation of subs (5) in cases where it applies, but where it does not apply, one still has to ask, under subs (5), whether the person is taking reasonable steps to comply, notwithstanding that a particular failure to do so has been shown which has failed the test of subs (6). The need to ask that question seems to me to be just what Hill J called a requirement “to consider separately whether [the person] took reasonable steps to comply with the terms of the agreement, without reference to s 45(6).”
In my opinion, until a full court considers the problem, a single judge should follow the interpretation which has now been affirmed by three judges of the Court.
Accordingly, a finding against Mr Fitzalan under s 45(6) would not be an end to the matter. It would remain to be determined whether, despite the particular failure to comply with the terms of the agreement falling within subs (6), Mr Fitzalan “satisfies the Employment Secretary [or the Administrative Appeals Tribunal, standing in the Secretary’s shoes] that [Mr Fitzalan] is taking reasonable steps to comply with the terms of the agreement”. A favourable finding on this latter question could, for example, be made in a case where a failure to comply, although “within the person’s control”, was trivial, and there were other things being done by the person to perform the agreement.
Unless, therefore, I reach a decision that it would not, in the circumstances of this case, be open to the Tribunal to make an ultimate finding in favour of Mr Fitzalan, my conclusion that it erred in law in the decision it did reach must result in the matter being referred back for determination according to law. Before attempting to resolve this final issue, I should examine a little further the effect of Mr Fitzalan’s entry into a Case Management Activity Agreement containing clause 1. In Secretary, Department of Employment, Education, Training and Youth Affairs v Baker (1997) 48 ALD 33, Heerey J considered a Case Management Activity Agreement containing an identical clause. His Honour held (at 36) that the clause was “valid”, and that it imposed a “general obligation” to do everything the party could to get a job. I do not think there is any substance to the contention, which was put to me, that the obligation is too vague, and is thus void for uncertainty. In my opinion, the clause has a sufficiently definite meaning, which can be ascertained by the normal process of construction: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 436-437; Meehan v Jones (1982) 149 CLR 571 at 578; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 342 et seq.
The Administrative Appeals Tribunal accepted the authority of Baker, and that clause 1 was valid. However, it treated the obligation to “do everything I can to get a job” as not applying to the required attendance at interview if, in fact, the job was not suitable. This, I think, involves an erroneous construction of the clause. The words “a job” in it are general; they do not refer to a particular job on offer on a particular occasion. It could not be known by Mr Fitzalan, in advance, whether or not terms of the proposed employment contract that troubled him might be subject to variation, or, indeed, what the outcome of the interview might be. It was an interview with a significant employer, and the abandonment of it, on the really quite flimsy grounds put forward by Mr Fitzalan, could not be seen as other than a failure to do everything he could to get a job. In fact, of course, had he pursued the interview, he would have discovered that the particular job involving work away from Nyngan, and staying at motels four nights in the week, was not long term, but for three to four months.
It is the separate obligation in clause 1 “to undertake suitable paid work”, expressed in language closely similar to that of the term implied in the Case Management Activity Agreement by s 39(2)(a) of the Act, to “accept any offer of paid work, other than work that is unsuitable to be undertaken by the person”, which raises the question of the suitability of the job. The implied term, as has been mentioned, is given some degree of definition by s 42(1). For the purposes of the implied term, “particular paid work is taken to be unsuitable for a person if, and only if, in the Employment Secretary’s opinion” certain facts exist. The seeming definition of this provision, unfortunately, disappears when one reads the final fact listed: “(j) for any other reason, the work is unsuitable for the person”. For present purposes, it is worth pointing out that paragraph (g) of the list reads: “commuting between the person’s home and the place of work would be unreasonably difficult”, and paragraph (i) reads: “the work requires the person to move from a home in a place to a home in another place and subsection (2B) applies to the person” (it will be recalled that there is no subs (2B)). The word “commuting”, as a glance at the New Shorter Oxford English Dictionary (1993) or the Macquarie Dictionary (3rd edition, 1997) would show, refers to regular travel between home and work; it does not limit the travel to daily travel.
In so far as the implied term is imposed by statute, it is appropriate, in construing it, to take account of the purposes of the statute. In so far as clause 1 is a negotiated term agreed between the parties, it is appropriate to construe it having regard to the purposes of the Case Management Activity Agreement itself. Relevantly, I do not think there is any difference. On either basis, there is an overriding purpose of overcoming, so far as possible, a long term inability to obtain suitable employment, in the interests both of the unemployed person and of the community. It would be entirely contrary to both of these interests, the two interests represented in the negotiation of the agreement, to construe “suitable” in an unduly restrictive sense. The intention is to enable the unemployed person to take a place alongside the generality of the community, who are employed. In this context, it is not to be thought that the incidents of a job will, in general, render it unsuitable if they are of the same kind as the incidents of jobs commonly done in the community. Of course, I have qualified this proposition by the words “in general”; a job may be unsuitable for a particular person, though perfectly suitable for others, for some special reason: eg, the dermatitis to which Hill J referred in Garnys at 326. But, in the absence of some serious consequence for the individual, it is difficult to see how roadwork in the vicinity of a country town could become unsuitable because workers had to stay away overnight for four days in the week for three or four months, being accommodated with full board in motels; many workers in the community have to travel from time to time in the course of their employment.
However, in the present case, as I have made clear, it is the first part of clause 1 which is in question. On the facts found, or which were not in dispute, it follows as a matter of law that Mr Fitzalan failed to comply with that term of the agreement, and that the main reason, indeed the only reason, for his failing to comply involved a matter that was within his control, namely, his decision to abort his interview. As for the remaining question, which I have accepted, in accordance with the decision in Ferguson, arises under s 45(5)(b), the onus is on Mr Fitzalan, who did not appear before the Administrative Appeals Tribunal. That there is such an onus, as a practical matter, is made plain by the terms of the legislation, notwithstanding that the issue arises in the context of administrative law. Not only was the failure which triggered the proceeding a significant failure, but there was no evidence at all to show positively that Mr Fitzalan was otherwise taking reasonable steps to comply with the terms of the agreement.
It follows that the orders that are “appropriate by reason of [the Court’s] decision” within s 44(4) of the Administrative Appeals Tribunal Act are as follows:
1. That the decision of the Administrative Appeals Tribunal be set aside;
2.That in lieu of the decision of the Tribunal, the decision of the Social Security Appeals Tribunal dated 7 August 1996 be set aside, and in lieu thereof, the decision reviewed by the Social Security Appeals Tribunal to cancel payment of newstart allowance to Mr Fitzalan be affirmed.
In accordance with the concession made by the applicant Secretary, there will be no order as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett. Associate:
Dated: 4 August 2000
Counsel for the Applicant: Mr T Reilly Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr M B Smith Solicitor for the Respondent: Welfare Rights Centre Date of Hearing: 16 February 2000 Date of Judgment: 4 August 2000
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