EXPLANATORY STATEMENT
Social Security (Unsuitable Work) (FaCSIA) Determination 2006
Summary
This Determination is made under subsection 731B(1C) of the Social Security Act 1991 (the Act).
The purpose of this Determination is to set out matters the Secretary must take into account in determining if work is unsuitable. The Determination is relevant for special benefit.
Explanation of the Determination
Under the Act, the Secretary can require special benefit claimants and recipients who have participation requirements to undertake particular paid work, other than work that is unsuitable to be done by the person. Work will be unsuitable for a person if, in the Secretary’s opinion, one of the express matters referred to in the legislation applies. However, the Secretary can also determine that work is unsuitable for any other reason as referred to in paragraph 731B(1)(i). This Determination relates to the matters that the Secretary must take into account in forming the opinion as to whether work, for a reason other than those specifically referred to in the Act, is unsuitable for a person.
Explanation of the provisions
Section 1 sets out the name of the Determination. Section 2 sets out the commencement date of the Determination being 1 July 2006. This corresponds with the commencement of the provisions in the Act under which the Determination is made. Section 3 sets out the definitions to be used in the Determination. As provided by the note, terms appearing in the Determination have the same meaning as in the Act.
Section 4 contains the substantive provisions of the Determination. As provided by subsection 4(1), section 4 only applies if a person has a partial capacity to work or is the principal carer of at least one child. The terms ‘partial capacity to work’ and ‘principal carer’ are both defined in the Act.
Subsection 4(2) sets out the provision in the Act that deals with work being unsuitable for reasons other than those expressly listed in the Act, that is, paragraph 731B(1)(i).
Subsection 4(3) contains the matters that must be taken into account when determining if work is unsuitable for a relevant special benefit claimant and recipient.
The first of the matters is contained at paragraph 4(1)(a) and is the amount of time it takes the person to travel to and from work. This needs to be considered where the travel time either between the person’s home to the person’s work would normally exceed 60 minutes or the travel time from the person’s work to the person’s home would normally exceed 60 minutes. In determining if a journey would normally exceed 60 minutes, subsection 4(4) sets out that the Secretary is to have regard to all forms of transport (whether public or private) that are available and accessible by the person. Even if travel may not otherwise be unreasonably difficult, this ensures that the length of time spent travelling to and from work (including via the location of child care) when it is greater than 60 minutes is taken into account, when determining if work is unsuitable for a person. In considering the length of time a person would have to travel, the Secretary is also required to take account of the types of transport that are available to a person to use, for example, whether disability accessible taxis are available and accessible to a person.
Paragraphs 4(3)(b) and (c) are both matters of a financial nature. Paragraph 4(3)(b) requires consideration of a person being financially worse off because of certain financial costs incurred in undertaking the work. That is, whether in doing the work the person would be worse off than if the person did not do the work. These financial costs that must be taken account of are:
- those that would be incurred in providing appropriate care and supervision to a child for whom the person is a principal carer; and
- travel that would be incurred by the person in undertaking the work.
The effect of paragraph 4(3)(b) is that, after taking into account both work related child care and travel costs, if a person would be financially worse off in comparison to not doing the work, it is a matter that needs to be taken into account in determining if the work is unsuitable.
Paragraph 4(3)(c) requires consideration of the financial benefit a person would gain in undertaking the work if there would only be a marginal financial gain. The reason for the marginal gain, however, must be because of the cost of providing appropriate care and supervision to a child for whom the person is a principal carer at the time the person would be working. This acknowledges that it is not appropriate to compel a principal carer parent to take a job where there is only marginal financial gain where the cost of child care alone is considered.
Consultation
The Department of Employment and Workplace Relations and the Department of Education, Science and Training were consulted to ensure a co-ordinated and consistent approach in respect of matters to be taken into account when considering if work is unsuitable for social security recipients, for a reason other than those expressly mentioned in the Act.
Consultations were undertaken with the following organisations.
- National Welfare Rights Network;
- the Australian Council of Social Service;
- the National Council of Single Mothers and their Children;
- the Sole Parents’ Union;
- the Welfare to Work Consultative Forum; and
- the Disability Advisory Group.
The organisations consulted were provided with a draft of the Determination and were invited to provide comments at a forum held on 13 January 2006 and to provide written comments to the Department of Employment and Workplace Relations.