Trajcevski; Secretary, Department of Employment and Workplace Relations
[2005] AATA 415
•10 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 415
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/79
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
MILE TRAJCEVSKI
Respondent
DECISION
Tribunal Senior Member L Hastwell Date10 May 2005
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Newstart Allowance – whether respondent reduced his employment prospects by moving to Port Augusta – decision affirmed
Social Security (Administration) Act 1999 s 131
Social Security Act 1991 s 634
Re Secretary, Department of Social Security and Prince (AAT 6575, 24 December 1990)
Re Borowiecki and Secretary to the Department of Social Security (AAT 6914, 8 May 1991)REASONS FOR DECISION
10 May 2005 Senior Member L Hastwell 1. On 4 January 2005 a decision was made by Centrelink to impose a 26 week non-payment period on Mr Trajcevski (the respondent) with respect to his Newstart Allowance, which period would run from 4 January 2005 to 2 July 2005. The decision was based on a determination that the respondent had moved to an area that lowered his employment prospects without sufficient reason.
2. The Social Security Appeals Tribunal (SSAT) considered the matter on review, and on 8 February 2005 decided to set aside the decision under review, and substituted its decision that by moving from Melbourne to Port Augusta the respondent did not lower his employment prospects.
3. The Department of Employment and Workplace Relations (the Department) applied to this Tribunal for review of that decision.
4. The respondent’s payments have continued due to the operation of s 131(1) of the Social Security (Administration) Act 1999, and the Department’s decision to continue payments pending the determination of the review.
issues for determination
5. The issues to be determined by the Tribunal are:
· Did the respondent reduce his employment prospects when he moved from St Albans in Victoria to Port Augusta in South Australia in December 2004?
· If he did reduce his employment prospects by this move, did he have a sufficient reason for moving such that a 26 week non-payment period should not be applied?
legislation
6. The relevant legislation is contained in s 634 of the Social Security Act 1991 (the Act). Section 634(1) of the Act provides as follows:
“(1)Subject to subsections (1B) and (2), if, in the opinion of the Secretary, a person has reduced his or her employment prospects by moving to a new place of residence without sufficient reason, a newstart allowance is not payable to the person for 26 weeks.”
Section 634(3) provides as follows:
“(3)For the purposes of subsection (1), a person has a sufficient reason for moving to a new place of residence if and only if the person:
(a)moves to live with a family member who has already established his or her residence in that place of residence; or
(b)moves to live near a family member who has already established residence in the same area; or
(c)satisfies the Secretary that the move is necessary for the purposes of treating or alleviating a physical disease or illness suffered by the person or by a family member; or
(d)satisfies the Secretary that the person has moved from his or her original place of residence because of an extreme circumstance which made it reasonable for the person to move to the new place of residence (for example, the person had been subjected to domestic or family violence in the original place of residence).”
7. It is common ground that if the respondent is required to establish a sufficient reason for the move, then ss 634(3)(a), (b) and (c) of the Act are not relevant or contended by the respondent in this case. The respondent did not actively advocate that there was any extreme circumstance within the meaning of s 634(3)(d) of the Act.
background and discussion of the evidence
8. At the hearing, the Department was represented by Mr Goldie. The respondent was present at the hearing and represented himself. He was assisted by an interpreter in the Macedonian language.
9. Documents submitted pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence. Where relevant other exhibits will be referred to.
10. The Department put forward its case as being contained in the Amended Statement of Facts and Contentions received as Exhibit A2 by the Tribunal. The Department also called Mr Louis Poiana, a Centrelink officer, to give evidence.
11. The Department’s position was that the respondent had reduced his employment prospects when he moved to Port Augusta in December 2004, and that there was no “sufficient reason”, within the meaning of the legislation such that the non-payment period should not be applied.
12. The Department based its case largely on statistical data available that indicated that the unemployment rate and labour force in metropolitan Melbourne were 5.5 percent and 1,854,500 respectively, while the corresponding unemployment rate and labour force for the Port Augusta locality were 9.6 percent and 6,451 respectively.
13. Mr Poiana, who was called to give evidence for the Department, is a Policy Advisor with Centrelink. He discussed the policy behind the legislation which is to discourage job seekers from moving from areas where there are job prospects to areas where there are lesser job prospects. He emphasised that the intention of the programme is not to prevent people moving, but to ensure that people on Newstart Allowance have their actions focused towards finding work. He acknowledged that there was no specific provision for older job seekers, or for the long-term unemployed.
14. The Participation Plan [Exhibit A3], entered into between the respondent and the Department, was shown to Mr Poiana. He confirmed that such an agreement would normally be entered into between the job seeker and Centrelink. The adviser would be expected to impart to the job seeker the consequences if the job seeker did not comply with the agreement, and he would expect oral advice to be given regarding relocation. These agreements were usually entered into annually. He told the Tribunal that in this particular case there was no interpreter made available at the time that the respondent signed the agreement. He had information from the respondent’s file to that effect.
15. The methodology of applying the relocation test was outlined by Mr Poiana. If the job seeker has a sufficient reason for moving within the terms of the legislation, then there is no consideration of specific individual circumstances. If there is a sufficient reason in the Department’s view, then consideration would be given as to whether the move resulted in reduced employment prospects. The unemployment rate comparison is not the only factor, but it is a key item of evidence considered by the Department. He said it is an objective indicator of employment prospects, and a reliable one. The size of the labour market in each area is also another indicator.
16. Mr Poiana’s evidence was that Port Augusta is considered to be a non-metropolitan area, and so the unemployment rates would be considered as part of the assessment, and what is known as the two percent rule would apply. If the unemployment rate is two percent or higher in the region where the job seeker moves, this is an indicator that there are fewer employment opportunities in that area. The rule is a guideline used by the Department in determining whether a person has moved to an area of reduced employment prospects.
17. In looking at individual circumstances, Mr Poiana said that the primary question would be “Does the individual have skills that are in demand in that area at the time?”. Job seekers are invited to provide evidence of their claim that there are jobs available for them for the skills they have. For instance, he said, they could be asked as to details of job offers, job interviews, or details of actual vacancies advertised.
18. Mr Poiana said that the economy and labour market in Port Augusta has been depressed for many years, with major industries in decline or closed down completely, and so it is considered to be a depressed economy. In his view, the current demand for unskilled labour is minimal, and when construction occurs in the area, the construction companies bring in their own labour rather than recruiting locally. He said he is aware that there are limited opportunities in the power station, and even then it is for partially skilled workers.
19. A search on the Australian job network database some two to three weeks ago showed that there were seven vacancies in Port Augusta for unskilled work in the category “Labour, Factories or Machine”, as compared to 362 in south west Melbourne. The Job Network Providers list vacancies on a central database, and the situation in the Melbourne metropolitan area is different in terms of the jobs available and the range of job available. Melbourne is considered to be an active economy. There are many factories and large employers in Melbourne. He said that it is generally considered that for an economy to be thriving, there needs to be population growth and that the population growth in Port Augusta was in decline.
the respondent’s evidence
20. The respondent gave evidence with the assistance of an interpreter. It was evident that he speaks a little English, but largely required the assistance of the interpreter to properly understand questions put to him, and to adequately answer them. He does not read or write in English, and because of lack of practice and exposure to his own language over the years and his limited education, he also has difficulties reading and writing in his own native language of Macedonian. He had only four years of formal schooling before coming to Australia.
21. The respondent came to Australia in 1971, and for the first 20 years of his life in Australia he held jobs in various factories, including in the textile industry, at Ford and at BHP.
22. Around 1990 the respondent was working with Ford when he became aware that the plant where he was working was going to close down. He decided to resign his employment and go to Whyalla in the hope that he would obtain a job at the steelworks. He had some friends in Whyalla, and this was an incentive to move. He received a $3,000 payout as a result of leaving Ford. His evidence was that his understanding of the 12 week non-payment period that was imposed when he moved to Whyalla in 1990 was that he was not eligible for benefits for 12 weeks because he had some money at the time to live on.
23. For the next nine years the respondent lived in Port Augusta, or Whyalla, and during that time was not successful in obtaining employment. He looked for work as a labourer, but was unsuccessful. He recalls having one weeks work with a builder during the entire nine years.
24. Still hopeful he may obtain employment, and keen to put himself in a position to purchase a home in the cheaper housing market in Port Augusta, the respondent returned to Melbourne in 1999 to continue to look for employment. He thought he may have a better chance of obtaining employment in Melbourne so that he could save some money, and then return to Port Augusta to purchase a house.
25. The respondent then spent the next five years in Melbourne, during which time he was moved through five different Job Network Providers. During that time he did not receive one job offer. He said when an agency was ultimately not successful in obtaining him a job, they would move him on to another agency, and so five times he was moved on to new agencies.
26. The respondent said that after five years of trying to find work in Melbourne, he decided to return to Port Augusta in the hope that he could find employment there and settle there. He had no understanding that it may affect his benefit payments if he went to Port Augusta. He was shown the Participation Plan [Exhibit A3], which he entered into with his last Job Network Provider in November 2004. This document contains information about the consequences of relocation, and sets out his obligations to seek employment. It was clear that the respondent was unable to read the document without the assistance of an interpreter. No interpreter was present when he entered into the Participation Plan. He said he had no real understanding of what he was signing, other than that it meant he would continue to receive benefits.
27. The respondent then had the opportunity to drive a woman back to Whyalla in late November 2004. She paid for petrol, and so he drove her to Whyalla and then he drove back to Port Augusta, arriving in early December 2004. He was shown a flat by his friend that he could possibly rent, and he went to the Centrelink office immediately, and inquired if he could transfer his benefits to Port Augusta, and they said he could do so. He was adamant there was no issue raised regarding relocation. He then went to the Housing Trust on the same day to enquire about a bond payment to enable him to move into the flat. They asked him whether he was allowed to stay in Port Augusta, and while he was present the Housing Trust officer made a phone call to Centrelink. Centrelink confirmed that he was eligible for Newstart Allowance. He was then granted bond assistance, and he entered into a rental agreement with respect to the flat. His name remains on a waiting list for Housing Trust accommodation in Port Augusta.
28. The respondent and his friend then drove back to Melbourne to collect his few possessions and finalise his accommodation arrangements in Melbourne. They returned to Port Augusta before Christmas 2004. He was then called in for an interview at Centrelink in early January 2005, and it was then for the first time that he was interviewed with respect to relocation and the issue was actively raised with him.
29. On a number of occasions in his evidence the respondent expressed distress at the situation he found himself in, and said that he would not have moved permanently back to Port Augusta had he been aware that he would be subject to a non-payment period. His evidence was that had he been told on 7 December 2004, and before he rented the flat, about the potential imposition of a non-payment period, he would have returned to Melbourne immediately, and would not have returned to Port Augusta.
30. Records obtained from the respondent’s file by the Department confirm his contact with the Department on 7 December 2004, and confirm contact between the Department and the Housing Trust on the same date.
31. When cross-examined, the respondent remained adamant that he had no understanding of the relocation rule. He emphasised that there was no interpreter ever present when he talked to someone at Centrelink, and that sometimes it did concern him that people were saying things to him that he did not understand. He reiterated that he would not have stayed in Port Augusta had he been told on 7 December 2004, when he went to Centrelink in Port Augusta, that he was facing a breach due to the relocation.
32. The respondent said that if his payments remain in place, he will continue to live in Port Augusta where he hopes to obtain public housing and employment. Despite his very long history of unemployment, he appeared optimistic about possibly obtaining a job in Port Augusta.
submissions
33. The Department submitted that although it had sympathy for the respondent’s position, he had narrowed his employment prospects by moving to Port Augusta. Their contention was that his age and deficits in obtaining work, and his ability to get work assistance were not altered as between Melbourne and Port Augusta, and therefore the relative nature of the labour market should be the decisive factor. The Department contended that there were few prospects in Port Augusta, and that job prospects were considerably greater in Melbourne.
34. The Department accepted that the respondent did not appear to understand the consequences of his move, but that this in itself was not an extreme circumstance.
35. The Department could not establish exactly what advice was given to the respondent on 7 December 2004, but contends that it should not affect the outcome, and bears no relevance to s 634 of the Act.
36. The respondent’s submission was that that he took advice given to him by the Department in early December 2004 that he could relocate to Port Augusta, and on the strength of that he went back to Melbourne and brought his few possessions back to Port Augusta. He was distressed at the possibility of facing any non-payment period because of his very marginal financial circumstances. He asserted that he had acted on incorrect advice given to him by the Department. He asserted that he remained hopeful that he would obtain employment in Port Augusta.
consideration
37. The respondent was a straightforward witness, and there was no reason to doubt the veracity of his evidence. It was quite clear that he had a limited understanding of the English language, that he did not read or write English, and, on his own account, has lost a great deal of his ability to read and write in his own language because of his limited education and his lack of exposure to his own language over the years since he came to Australia.
38. The threshold issue for the Tribunal to determine is whether, by moving from Melbourne to Port Augusta the respondent has reduced his employment prospects. The Tribunal must look at the individual circumstances of the respondent in determining whether he reduced his employment prospects in moving. If the Tribunal is of the view that he did reduce his employment prospects, then the Tribunal must go on to consider whether there was sufficient reason within the meaning of the legislation for him to do so.
39. In Re Secretary, Department of Social Security and Prince (AAT 6575, 24 December 1990), the Tribunal rejected taking a purely statistical approach which looks only at the relative employment statistics in the two locations to determine whether a person has reduced his or her employment prospects. An analysis of the individual situation is important in each case. This approach has been affirmed in a number of subsequent cases.
40. The respondent in this case has significant barriers to unemployment wherever he is situated. He has significant language difficulties. He understands and speaks very little English, and he does not read or write English. He is semi-literate in his own language of Macedonian. He has been unemployed for 14 years, and he is unskilled. He is 53 years of age, and single with no family in Australia and it would appear few close friends. He has one long-term friendship in Port Augusta, and historically a sense of connection with Port Augusta.
41. The respondent spent nine years in Port Augusta with no success in the employment market during the 1990s. He then moved to Melbourne with the hope of improving his prospects of employment, where he moved from Job Network Provider to Job Network Provider, but no one could find him employment. He was moved through five separate Job Network Providers in five years, and despite the Department’s evidence of the more buoyant economy in St Albans, he did not receive any job offers despite the attempts of five different agencies over five years.
42. The respondent has remained on benefits throughout the entire 14 year period, apart from the 12 week non-payment period in 1990. The Tribunal can assume he has satisfied the work test throughout that period, and has satisfied the Department that he has been actively seeking employment, but without success.
43. In the matter of Re Borowiecki and Secretary to the Department of Social Security (AAT 6914, 8 May 1991) the applicant had been unemployed for 10 years, and moved from Mackay to Brunswick Heads. The Tribunal commented:
“… In these circumstances where a removal from a place which has failed to provide the applicant with any employment over a long period to another place where the prospects of obtaining relevant employment are, objectively, no worse than the prospects … it cannot be said as a matter of fact that the employment prospects have been reduced. …”
44. The Department relies on a broad statistic to argue that “objectively” the respondent’s prospects of work have reduced by moving to Port Augusta. The Tribunal does not accept that a broad statistic should be determinative of this matter. The statistic pays no regard to individual groups of people when finer and more specific statistical data, which the Department acknowledges is not available to it, may produce a different result. The delegate appears to have paid little regard to the individual circumstances of the respondent which must be considered in this case.
45. The respondent belongs to a specific group, of long-term unemployed men who are over 50, unskilled, and in addition have language barriers to employment. These are people with very significant barriers to employment wherever they reside, and the statistic quoted does not look at specific groups. The Tribunal considers that the data is perhaps applicable to the average job seeker without barriers to employment. The respondent is not in this category.
46. The respondent had exhausted his prospects of employment in St Albans in Victoria. For five years he had sought employment without success.
47. The respondent hoped that by moving to an area, where he had some contacts, and where he had some familiarity with the area, it may be a stir to him finding work. He made a decision to move his life once more in a continued optimism that someone, somewhere would eventually offer him employment, and in the hope that he could better his life in Port Augusta having had no success in the employment market in St Albans.
48. The Tribunal finds that the respondent’s only prospect of employment is probably that some friend or acquaintance, possibly through contacts, will find him a job that can accommodate his multiple barriers to employment. Job Network Providers have been unsuccessful over many years in finding him employment, and his employment prospects are minimal whether he is living in Melbourne or Port Augusta. They may even be slightly improved in Port Augusta which is a small rural community where word of mouth and personal contact with a community may result in the respondent finding some sort of unskilled employment. Unskilled farming work may also be more readily available in the Port Augusta area.
49. For the reasons set out, the Tribunal finds that the respondent’s move from St Albans in Victoria to Port Augusta did not narrow his prospects of employment, and that on the balance the Tribunal is satisfied that his prospects of employment remain negligible and probably unaltered, but possibly slightly improved because of the energy and optimism that the fresh start and the new community may give to the respondent.
50. The respondent’s skills and work history are such that if there is suitable work for him, it is in factory, farm work or labouring jobs, and such jobs are available within the Port Augusta area. The respondent remains remarkably optimistic about the prospect of finding employment, and the Tribunal accepts that he continues to actively look for work.
51. The Tribunal is concerned at what appears to possibly have been incorrect advice given to the respondent when he attended at the Centrelink office in Port Augusta on 7 December 2004. As the Tribunal has affirmed the decision under review, then there need be no further exploration of that issue. That would in any event be an issue for the Secretary to investigate, and not one that the Tribunal would determine.
52. The Tribunal affirms the decision under review. This means the appeal is unsuccessful.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ............(J Coulthard)…….............................
AssociateDate of Hearing 4 May 2005
Date of Decision 10 May 2005
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr A Goldie
Solicitor for the Respondent Centrelink Legal Services Branch
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