Stearman and Secretary, Department of Employment and Workplace Relations

[2006] AATA 1046

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1046

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/218
  No Q2006/361

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAMES STEARMAN

Applicant

And SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date5 December 2006

PlaceBrisbane

Decision The decision under review is affirmed  

........[Sgd].........

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – newstart allowance – failure on three occasions to take reasonable steps to comply with a term of a Preparing for Work Agreement – reasons for non-compliance within applicant’s control and reasonably foreseeable – imposition of two activity test breach rate reduction periods – imposition of one activity test breach non payment period – decision affirmed

Social Security Act 1991 ss 593, 601, 626(1A), 630A, 644AA, 644AE

REASONS FOR DECISION

5 December 2006      Mr RG Kenny, Member

Background

1.      In 2005, James Stearman (the applicant) was in receipt of newstart allowance which is a form of income support payable in accordance with the terms of the Social Security Act 1991 (the Act).  His job network member was Mission Australia and, on 7 November 2005, he signed an agreement which included a requirement that he attend a supported job search session at Mission Australia’s Southport premises every Monday at 9.30 am during the period from 7 November 2005 until 1 May 2006.  In December 2005 and January 2006, officers with Centrelink, for the Department of Employment and Workplace Relations (the respondent), determined that Mr Stearman had not complied with his attendance requirements on 9 November 2005, 9 January 2006 and 16 January 2006.  As a result, two newstart allowance rate reduction periods and one non-payment period were imposed on him.  Those decisions were affirmed by an authorised review officer in Centrelink and then by the Social Security Appeals Tribunal (SSAT).  Mr Stearman now seeks review of the decisions by the Administrative Appeals Tribunal (the Tribunal).

Hearing

2. Mr Stearman attended the hearing but was not represented. Mr M Black, from Centrelink’s Legal Services Team, appeared on behalf of the respondent. The material available in evidence included that which was prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.

Issues and Legislation

3.      Where a person is required to enter into a newstart activity agreement in relation to a period, where the person so enters an agreement and where the person takes reasonable steps to comply with its terms, the person is qualified for newstart allowance for the period: see s 593(1)(e) of the Act.  Under s 601(6) of the Act, a person takes reasonable steps to comply with the agreement, unless the person has failed to comply and the main reason for failing to comply involved a matter which was within the person’s control or the circumstances which prevented the person from complying were reasonably foreseeable to the person.  It is not disputed and I am satisfied that Mr Stearman entered into a Newstart Activity Agreement, that he was required to attend the Southport premises of Mission Australia for a supported job search session every Monday at 9.30 am during the period from 7 November 2005 until 1 May 2006 and that he did not so attend on Mondays dated 9 November 2005, 9 January 2006 and 16 January 2006.  The issue for determination is whether Mr Stearman took reasonable steps to comply with his agreement.

Evidence

4.      Mr Stearman has a history of employment in the cleaning industry.  Some years ago, he conducted his own cleaning business but, in more recent times, has worked as a cleaner in large complexes such as shopping centres, resorts, and hotels.  He consults newspapers, particularly those which appear on Saturdays, and responds to advertisements for such positions.  His evidence was that, in following up those advertisements, he likes to attend the premises where the work is located and, to maximize his opportunities, does so on Monday mornings.  He was aware of the need to attend sessions at Mission Australia at 9:30 a.m. on Monday mornings and had attempted to negotiate a different day but, in that regard, had been unsuccessful.  His evidence was that, on the three Monday mornings when he did not attend as required, he had, instead, travelled by public transport to various places where work had been advertised as being available.  He also said that, on each occasion, he first went to the premises of Mission Australia, which was near to his own residence, and placed a hand-written note under the door to explain what he would be doing.  Mr Stearman was not satisfied with the quality of the service which was provided by Mission Australia and he considered that there was more chance for him to obtain employment by following his own leads than by waiting for Mission Australia to arrange employment options for him.

5.      Mr Stearman has not been consistent in giving explanations for non-attendance at sessions with Mission Australia.  In his evidence to the SSAT, he said that he could not recall the reasons for his not attending those sessions.  He also said that, for the session on 9 November 2005, he might have been looking for work and he nominated a particular place which he might have attended.  At the hearing before the Tribunal, he was able to nominate particular employment options which he had been following up on each of the three days in question. 

6.      There are various file notes in the T documents prepared by officers of Mission Australia and Centrelink which relate to Mr Stearman.  On 9 January 2006, when he failed to attend the 9.30am session, he was contacted by mobile telephone and he advised that he had commenced work as a cleaner at Crown Towers.  The note also indicates that the employer was contacted and said that Mr Stearman had been employed for one week; that his work had been unsatisfactory; that he had been issued with reprimand notices; that he frequently arrived late; and that he was unable to undertake the work required.  The employer also said that Mr Stearman was due to work again on 9 January 2006 but had not turned up for work.  In his evidence, Mr Stearman denied that history and said that he had not been continued in the employment because the position was given to another man who had previously worked for the organisation. The notes in the T documents make reference to letters being placed under the door of Mission Australia.  However, none of these coincide with the three dates in question in this matter.  Neither do those letters provide an advice that Mr Stearman would not be attending a 9.30am meeting.  Rather, the letters make complaints about the activities of some of the employers to which Mr Stearman had been referred by Mission Australia.

Submissions

7.      Mr Black submitted that, regardless of the difficulties that Mr Stearman may have had with Mission Australia or with employers, what mattered for the purposes of the Act was whether he had taken reasonable steps to comply with the obligations in his agreement.  He submitted that, on each of the relevant days, he had not done so because, on his evidence at the hearing, he had made a conscious decision to follow up employment options on his own rather than attend the sessions.  He also submitted that there was nothing unforeseeable about the circumstances which prevented him from attending.  Mr Stearman was not able to make any specific submissions concerning the taking of reasonable steps to comply with the agreement.  His main concern was with his high level of dissatisfaction with the quality of the service provided by Mission Australia.

Consideration

8.      In this matter, I accept as correct the submissions made by Mr. Black.  Regardless of whether or not Mr Stearman placed handwritten notes under the door at Mission Australia on the mornings of 9 November 2005, 9 January 2006 and 16 January 2006, and regardless of the content of any such notes, it is the case that, on his evidence, the main reason for failing to comply with the terms of the agreement was that he made a conscious decision to pursue employment options on his own account.  The decision to do that on each of the three days was a matter which was entirely within his control.  Taking that action prevented him from complying with the terms of the agreement and this outcome was reasonably foreseeable by him.  It follows that Mr Stearman did not take reasonable steps to comply with the terms of his Newstart Activity Agreement on each of those days.

9.      I have noted the allegations made by Mr Stearman about the quality of service by Mission Australia.  However, I am not in a position to make any findings in that regard and, in any event, any such finding would not be relevant to the enquiry raised by s 601(6) of the Act.

10.     The Act makes provision for penalties to apply to a person who fails to take reasonable steps to comply with the terms of a Newstart Activity Agreement.  Pursuant to s 626(1) of the Act, newstart allowance is not payable because of the failure.  However, this is qualified by s 626(1A) of the Act which reads:

If a newstart allowance becomes payable to the person after the time it ceases to be payable under subsection (1), then:

(a) if the failure is the person's first or second activity test breach in the two years immediately before the day after the failure -- an activity test breach rate reduction period applies to the person; or

(b) if the failure is the person's third or subsequent activity test breach in the two years immediately before the day after the failure -- an activity test non—payment period applies to the person.

11.     Mr Stearman’s non-attendance on 9 November 2005, 9 January 2006 and 16 January 2006 constitute his first, second and third failures, respectively.  No previous failures have been attributed to him and, accordingly, an activity test breach rate reduction period applies to each of the first and second failures and an activity test non-payment period applies to the third failure.  Pursuant to s 644AA(1A) of the Act, the duration of the reduction periods is 26 weeks.  Pursuant to s 644AE(2) of the Act, the rate reduction for the first breach is 18% and, for the second breach, it is 24%.  Pursuant to s 630A of the Act, the duration of the non-payment period is eight weeks.  I am satisfied that those calculations were made and appropriately applied in the decisions under review.

Decision

12.     The Tribunal affirms the decisions under review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         Michelle J Brazier
  Legal Research Officer

Date/s of Hearing  8 November 2006
Date of Decision  5 December 2006  
The Applicant appeared in person
For the Respondent                    Mr M Black, Departmental Advocate