Stafford and Secretary Department of Education, Employment and Workplace Relations

[2008] AATA 1057

Administrative Appeals Tribunal [2008] AATA 1057

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         2007/2181

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN STAFFORD

Applicant

And SECRETARY DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

REASONS FOR DECISION

Tribunal   Mr A Sweidan, Senior Member

Date of Decision               2 April 2008

Date of Written Reasons 24 April 2008

Place  Perth

1.    At the conclusion of the hearing of this application, the terms of the decision intended to be made and the reasons for that decision were stated orally.

2.    The applicant has requested the Tribunal furnish him with a statement in writing of the Tribunal’s reasons for its decision.

3.    The oral reasons for decision have been transcribed by Auscript Australasia Pty Ltd, the Commonwealth reporting service. 

4.    An edited copy of the transcript of those oral reasons is attached and is provided as a statement in writing of the Tribunal’s reasons for its decision.

..........(sgd) Mr A Sweidan..........

Senior Member

REASONS FOR DECISION

24 April 2008  Mr A Sweidan, Senior Member

1.The decision of the Tribunal in this matter is that the decision under review, being the decision of the Social Security Appeals Tribunal (SSAT), made on 12 April 2007, is affirmed, save that in relation to the commencement date of the non-payment period, that should be 14 November 2006, rather than 13 November 2006, as considered by the SSAT.

2.As outlined in the Secretary’s statement of facts and contentions, the issues in the matter before the Tribunal are, firstly, whether the applicant, Mr Stafford, committed Newstart participation failures, by failing to attend appointments on 9 November 2006 and 15 November 2006.

3.To that should be added, and by failing to enter into a Newstart Activity Agreement, having regard to the fact that at the commencement of the hearing, Mr Wright, for the Secretary, indicated that the Secretary also relies on the provisions of section 624(1)(c) of the Social Security Act 1991 (the Act) so that it is appropriate to include that now in the consideration of those issues. 

4.The second issue, if the answer to the first question is yes, whether Mr Stafford had a reasonable excuse for those failures.  Thirdly, whether Mr Stafford was subject to a Newstart participation failure non-payment period and fourthly, if the answer to the previous question is yes, whether the non-payment period commenced 13 November 2006.

5.As will be apparent from the decision, the Tribunal’s view is that the answers to these questions are firstly, that Mr Stafford did commit Newstart participation failures, by failing to attend the appointments on 9 and 15 November 2006 and also by failing to enter into a Newstart Activity Agreement when required to do so.  Secondly, that Mr Stafford did not have a reasonable excuse for these failures and thirdly, and including the fourth question now, Mr Stafford was subject to a Newstart participation failure non-payment period and that that period commenced on 14 November 2006.

6.The facts in the matter briefly stated are, firstly, that it is not in dispute that Mr Stafford failed to attend the 9 and 15 November 2006 appointments.  It is also not in dispute that he failed to comply with a requirement to enter into a Newstart Activity Agreement. 

7.The sole issue, therefore, and really the only issue of substance before the Tribunal is whether he had a reasonable excuse for those failures.  The other questions are subsidiary to that issue. 

8.The excuses, or excuse which Mr Stafford advanced to the Tribunal, in essence, come down to the fact that he was in dispute with PVS Workfind (PVS), being his allocated job network member. 

9.Mr Stafford claims that he was told by a person from PVS that the contract, presumably meaning the Newstart Activity Agreement, which he had previously signed was illegal. 

10.Whether that is so or not, is not a matter which this Tribunal has to determine, but accepting his claim at face value, assuming that he was told that, or something to that effect, there is no indication why that might have been so, other than his statement that it appears that he was told he was on the wrong type of contract or agreement.

11.He also obviously had other issues which upset him in relation to the fact that he wasn’t fully reimbursed for his TAFE student fees, notwithstanding that he claims that he was told he would be fully reimbursed. 

12.He was clearly dissatisfied with PVS, but whether rightly or wrongly, that is not a matter for this Tribunal to determine, other than insofar as it relates to whether or not he had a reasonable excuse for his failures as already detailed.

13.Mr Stafford did make reference in his evidence to the fact that the appointments were scheduled or one of them at least might have been scheduled for a time when he was attending to his studies.  However, he also made it clear that that is not the reason for his failure to attend the appointments.

14.It seems to the Tribunal to be very clear that Mr Stafford, because of his dissatisfaction with PVS, simply refused to attend the appointments and, on his own admission this is so. 

15.The other evidence also shows that he told Centrelink that he would not attend these appointments, both orally and in fact, in writing, according to one of the exhibits before the Tribunal.

16.The question in essence for the Tribunal to decide is whether the fact that a person who has been required under the Act by the Secretary to attend an appointment with a job network provider is entitled to say that he has a reasonable excuse for those failures because he is dissatisfied with that job network provider.

17.Mr Wright, who appeared for the Secretary, has referred the Tribunal to decisions of this Tribunal in a number of similar matters where it appeared that the applicant was dissatisfied with the job network provider for various reasons and particularly in the Vatarescu matter, the facts are, in most important respects, similar to the facts in this matter.

18.The Tribunal had regard to the AAT decision in Secretary, Department of Employment and Workplace Relations and Vatarescu [2007] AATA 1717 in which, at paragraph 14, the Tribunal noted that “it is reasonable to require a Newstart Allowance recipient to attend a periodic appointment with a designated Employment Service Provider for the purpose of entering into a negotiated Activity Agreement under the applicable legislative provisions.” In relation to the Respondent Dr Vatarescu’s dissatisfaction with his Job Network Member, the Tribunal made the following observations, at paragraph 15:

“If Dr Vatarescu had issues concerning Caloola’s performance under the terms of a previous agreement, then it would have been appropriate for him to raise these in the context of negotiating a further agreement.  It was open to Dr Vatarescu to request a review of his Activity Agreement at any time.  If he chose to seek a transfer to a different Job Network Member or Employment Services Provider it was for Dr Vatarescu to take that matter up with Caloola and the Department.  As I understand it, Dr Vatarescu did raise such issues with Caloola and the Department, but was unhappy with the response he received.  That is a matter for Dr Vatarescu to take up with the Secretary or other appropriate authorities if he is not happy with the manner in which his complaints were dealt with or addressed.  Issues of that character do not render unreasonable the requirements set out in the 28 November 2006 notice.”

19.The Tribunal also had regard to the AAT decision in Stearman and Secretary, Department of Employment and Workplace Relations [2006] AATA 1046 in which a “high level of dissatisfaction with the quality of the service” of a Job Network Members (at paragraph 7) was found not be relevant in an examination of whether reasonable steps had been taken to comply with an Activity Agreement under the previous provisions of subsection 601(6) of the Act (at paragraph 9).

20.The Tribunal can certainly sympathise to some extent with Mr Stafford.  It is clear that he became increasingly frustrated with various aspects of his dealings with PVS and also with Centrelink in certain respects.

21.However, notwithstanding that, it seems to the Tribunal to be quite clear that the requirement for him to attend firstly, the interviews, was reasonable.  That is a finding which the Tribunal is required to make under section 624(1)(a)(ii) of the Act.    

22.The Secretary was also entitled, under the terms of section 605(2) of the Act, to require Mr Stafford to require to enter into another Newstart Activity Agreement, instead of the existing one.  As pointed out by Mr Wright, that subsection does not include any requirement of reasonableness, but even if it did, it seems to the Tribunal that there is nothing unreasonable about the Secretary making such a requirement. 

23.Although as already indicated the Tribunal has some sympathy for Mr Stafford, and can understand to some extent his frustration, in the Tribunal’s view none of that constitutes a reasonable excuse for his failures (a) to attend the interviews, or appointments, on 9 and 15 November 2006; or (b) to enter into another Newstart Activity Agreement. 

24.The consequence of that finding by the Tribunal is that Mr Stafford became subject to a Newstart participation failure non-payment period. 

25.It appears that the SSAT concluded that the commencement date for that period was 13 November 2006.  However, the Tribunal is satisfied that as set out in the Secretary’s statement of facts and contentions, for the reasons which were set out there and which the Tribunal does not need to detail for present purposes, the commencement date should have been 14 November 2006, and the Tribunal so finds for the purposes of this decision.

26.In consequence of the above reasons, it follows that the decision already stated is, in the view of the Tribunal, the correct or preferable decision to be made by the Tribunal in this matter.