EXPLANATORY STATEMENT
Social Security (Qualifying Seasonal Horticultural Work) Determination 2017
Summary
This Determination is made under subsection 1073K(7) of the Social Security Act 1991 (the Act).
The purpose of this Determination is to determine the kinds of seasonal work that are qualifying seasonal horticultural work for the purposes of section 1073K of the Act.
Background
Section 1073K of the Act establishes the seasonal horticultural work income exemption (the income exemption), part of a social security income test incentive aimed at increasing the number of job seekers who undertake qualifying seasonal horticultural work. The incentive will be trialled for 2 years, commencing 1 July 2017, and forms part of the Seasonal Horticultural Work program (commonly known as the Seasonal Worker Incentives trial (the Trial)).
Under subsection 1073K(7) of the Act, the Secretary may determine certain kinds of seasonal work (as defined in section 16A of the Act) for the purposes of the definition of qualifying seasonal horticultural work in subsection 1073K(6).
The effect of making the Determination is that if seasonal work is qualifying seasonal horticultural work, job seekers on Newstart Allowance and Youth Allowance (other) who perform such work and are otherwise eligible for the Trial, will benefit from the income exemption in respect of certain income they earn while performing such work.
The effect of the income exemption is that relevant job seekers will not have the first $5,000 of income earned while undertaking qualifying seasonal horticultural work taken into account for the purpose of the income test under the Act for each of the financial years to which the Trial applies (2017-18 and 2018-19).
The income exemption also applies in respect of veterans’ entitlements under the Veterans’ Entitlements Act 1986.
Further, during the period relevant job seekers access the income exemption, relevant job seekers will be able to perform qualifying seasonal horticultural work, including on a full-time basis, without losing their qualification for their relevant allowance. This is because of the amendments made to the Act by the Social Services Legislation Amendment (Seasonal Worker Incentives for Jobseekers) Act 2017 (for example, see subsection 541(3A) of the Act).
It is also is intended that a yearly seasonal work living away and travel allowance of up to $300 per year will be paid through employment services providers to certain job seekers participating in the Trial undertaking qualifying seasonal horticultural work. If a person receives that allowance, it will not be included as income for the purposes of the Act or the Veterans’ Entitlements Act 1986 for the financial years to which the Trial applies. This is because of the amendments made to the Act by the Social Services Legislation Amendment (Seasonal Worker Incentives for Jobseekers) Act 2017 (for example, see paragraph 8(8)(sa) of the Act).
Operation of the provisions
Section 1 states the name of the Determination.
Section 2 states the commencement date of the Determination as being 1 July 2017. (This is the same date as the relevant provisions in the Act will commence).
Section 3 provides that the Determination is made under subsection 1073K(7) of the Act.
The Determination is made before the commencement of subsection 1073K(7) in reliance on subsection 4(2) of the Acts Interpretation Act 1901.
Section 4 defines terms used in the Determination. It provides that “harvest crops” means all vegetables, fruits, grains, seeds, hops, nuts, fungi, olives, flowers, broad acre crops, sugar, and sandalwood.
Section 4 also provides that the “Act” referred to in the Determination is the Social Security Act 1991. It further provides that “seasonal work” has the same meaning as is set out in section 16A of the Act.
A note to section 4 alerts readers to the fact that other words and phrases used in the Determination that are defined in the Act, have the meaning given by the Act.
Section 5 lists the kinds of seasonal work that are determined to constitute qualifying seasonal horticultural work. Section 5 provides that qualifying seasonal horticultural work is seasonal work, carried out in relation to harvest crops, which includes one or more of the following activities:
(a) harvesting;
(b) pruning and trimming vines and fruit trees;
(c) thinning and trimming flowers;
(d) chipping and weeding;
(e) operating harvesting equipment;
(f) planting;
(g) irrigating;
(h) siloing;
(i) packing;
(j) canning;
(k) any other like activities.
Qualifying seasonal horticultural work does not cover seasonal work where that seasonal work does not meet the definition in section 5 of the Determination. For seasonal work to fall within the work determined by section 5, the work must be carried out in relation to harvest crops. Seasonal work carried out in relation to other crops, such as aquaculture, does not fall within the seasonal work determined under section 5, and is therefore not qualifying seasonal horticultural work for the purposes of the definition under subsection 1073K(6) of the Act.
The seasonal work must also include one of the activities listed in paragraphs 5(2)(a) – (j) of the Determination, or any other like activities. The activities listed in section 5 have been selected to align with the definition of ‘harvest work’ used by Harvest Labour Services, and following consultation with industry stakeholders.
Consultation
The Department consulted with the following peak industry organisations prior to making the Determination:
- National Farmers’ Federation;
- Ausveg;
- Fruit Growers Tasmania;
- Bundaberg Fruit and Vegetable Growers Association;
- Wine Industry Association – South Australia; and
- Growcom.
The Department also consulted with the Department of Social Services, the Department of Agriculture and Water Resources, and the Department of Veterans’ Affairs.
The outcome of the consultations was that all stakeholders held the view that a broad definition of what constituted qualifying seasonal horticultural work should be adopted to cover the range of different roles and activities that are available in the sector. Accordingly, the definition of qualifying seasonal horticultural work resulting from this Determination is broad. The definition is also aligned with the definition of harvest work that is currently used by Harvest Labour Services. This will remove any confusion that may have arisen amongst employment providers, employers and job seekers about the harvest work promoted by Harvest Labour Services, and qualifying seasonal horticultural work the subject of the Trial. The intention is for these two types of work to be the same.
Regulatory Impact Analysis
The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Qualifying Seasonal Horticultural Work) Determination 2017
This legislative instrument (Determination) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Determination
The Social Security (Qualifying Seasonal Horticultural Work) Determination 2017 (the Determination) is made under subsection 1073K(7) of the Social Security Act 1991 (the Act).
Section 1073K of the Act establishes the seasonal horticultural work income exemption (the income exemption), part of a social security income test incentive aimed at increasing the number of job seekers who undertake qualifying seasonal horticultural work. The incentive will be trialled for 2 years, commencing 1 July 2017, and forms part of the Seasonal Horticultural Work program (commonly known as the Seasonal Worker Incentives trial (the Trial)).
The purpose of the Determination is to determine kinds of seasonal work (as defined in section 16A of the Act) that are qualifying seasonal horticultural work for the purposes of section 1073K of the Act.
The effect of making the Determination is that if seasonal work is qualifying seasonal horticultural work, job seekers on Newstart Allowance (NSA) and Youth Allowance (other) (YA(o)) who perform such work and are otherwise eligible for the Seasonal Horticultural Work program, will benefit from the income exemption in respect of certain income they earn while performing such work.
The effect of the income exemption is that relevant job seekers will not have the first $5,000 of income earned while undertaking qualifying seasonal horticultural work taken into account for the purpose of the income test under the Act for each of the financial years to which the Trial applies (2017-18 and 2018-19).
The income exemption also applies in respect of veterans’ entitlements under the Veterans’ Entitlements Act 1986
Further, during the period relevant job seekers access the income exemption, relevant job seekers will be able to perform ‘qualifying seasonal horticultural work’, including on a full-time basis, without losing their qualification for their relevant allowance. This is because of the amendments made to the Act by the Social Services Legislation Amendment (Seasonal Worker Incentives for Jobseekers) Act 2017 (for example, see subsection 541(3A) of the Act).
It is also is intended that a yearly seasonal work living away and travel allowance of up to $300 per year will be paid through employment services providers to certain job seekers participating in the Trial undertaking qualifying seasonal horticultural work. If a person receives that allowance, it will not be included as income for the purposes of the Act or the Veterans’ Entitlements Act 1986 for the financial years to which the Trial applies. This is because of the amendments made to the Act by the Social Services Legislation Amendment (Seasonal Worker Incentives for Jobseekers) Act 2017 (for example, see paragraph 8(8)(sa) of the Act).
Human rights implications
The Determination engages the following rights:
• the right to social security in article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
• the right to an adequate standard of living in article 11 of the ICESCR; and
• the right to work in article 6(1) of the ICESCR.
Right to social security and right to an adequate standard of living
Article 9 of the ICESCR recognises the right of everyone to social security. Article 11 of the ICESCR recognises the right of everyone to an adequate standard of living and to the continuous improvement of living conditions.
The Determination does not affect the payment of income support. Rather, the Determination benefits certain job seekers on income support. It does this by specifying the kinds of seasonal work in horticultural fields that job seekers on NSA and YA(o) may do in order to earn up to $5,000 from such work without that income being assessed under the social security income test, and by facilitating their access to seasonal work living away and travel allowance, without a similar effect on their income support payments. This supports their right to social security.
Further, if job seekers are doing the kinds of seasonal work set out in the Determination, they will continue to qualify for NSA and YA(o) while they are undertaking such work and accessing the income exemption. Otherwise, they may not have met or continued to meet the qualification requirements specified in the Act that require them to be unemployed, and actively seeking and being willing to undertake paid work (section 593 and section 541). This also supports their right to social security.
Finally, by defining qualifying seasonal horticultural work, the Determination enhances the right to an adequate standard of living, by enabling (in combination with the Act) certain job seekers to earn more income without that income affecting their income support payments. This in turn enables them to maintain an adequate standard of living.
Right to work
The Determination also enlivens the right to work, by providing financial incentives to unemployed persons to obtain experience in the horticulture sector and potentially help them to find paid work in that sector.
Conclusion
The Determination is compatible with human rights because it does not limit the right to social security, the right to an adequate standard of living, or the right to work, but rather supports those rights.