Dunkley; Department of Employment, Workplace Relations and Small Business [1999] AATA 103 (26 February 1999)

Last Updated: 4 March 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 103

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q98/1070

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS

Applicant

And PETER DUNKLEY

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date 26 February 1999

Place Brisbane

Decision The Tribunal sets aside the decision under review of the Social Security Appeals Tribunal dated 27 February 1998 and in substitution therefor decides that the respondent ceased to be qualified for Newstart Allowance from 18 April 1997.

(Sgd) EK CHRISTIE

MEMBER

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance - Case Management Activity Agreement (CMAA) - failure to comply with terms of CMAA - cancellation of allowance - whether failure to take reasonable steps to comply with CMAA - whether reason for failure to comply was within the respondent's control or reasonably foreseeable.

Employment Services Act 1994 ss 45(5), 45(6)

Secretary, Department of Employment, Education, Training and Youth Affairs v Ferguson (1995) 25 AAR 195

REASONS FOR DECISION

26 February 1999 Dr EK Christie

1. This is an application by the Department of Employment, Workplace Relations and Small Business ("the Department") to review a decision made by the Social Security Appeals Tribunal (SSAT) on 27 February 1998. The SSAT set aside the decision of an Authorised Review Officer made on 27 June 1997 to cancel the Newstart Allowance (NSA) of Mr Dunkley from 18 April 1997. This decision affirmed the earlier decision of a delegate to the Secretary to the Department of Employment, Education, Training and Youth Affairs made on 18 April 1997.

2. At the hearing, the Department was represented by Ms T Guthrie, a Departmental Advocate. Mr Dunkley represented himself and gave evidence by telephone from the Bundaberg office of the Department. The Department called Mr William Van Ryswyk to give evidence. His evidence was given by telephone from Coffs Harbour.

3. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975, the "T" Documents (Exhibit 1) and the following exhibits:

* Exhibit 2 Letter from Mr Van Ryswyk to Centrelink (3 December 1996)

* Exhibit 3 Background document to Skillshare

* Exhibit 4 1997 Calendar

4. Following the hearing, the Tribunal sought further information on the scope and content of the Skillshare Course (including any public advertisement) that Mr Dunkley had commenced. The Department provided the document to the Tribunal on 15 December 1998 (Supplementary Exhibit). A copy was immediately sent to Mr Dunkley seeking any response submission from him. Mr Dunkley spoke to the Tribunal on 22 February 1999 confirming that he had received this material but that he did not wish to make any submissions in response.

Issues before the Tribunal

5. The only issue to be decided by the Tribunal was whether Mr Dunkley's NSA should have been cancelled from 18 April 1998.

6. The general facts were not in dispute and may be stated briefly. Mr Dunkley was registered for work with the Coffs Harbour CES and had been unemployed since 25 March 1991 (Document T2 Folio 3). He had signed a Case Management Activity Agreement (CMAA) on 24 March 1997.

7. Mr Dunkley commenced an Agricultural Labourers Course on 7 April 1997. The class hours for the course were 9 am to 3 pm, four days a week (Monday to Thursday).

8. The duration of the course was 7 April to 1 May 1997.

9. Mr Dunkley attended the course until he was breached on 18 April 1997. He had missed a number of days between 7 April 1997 and 17 April 1997 (Document T2 Folio 4).

10. It was also not in dispute that Mr Dunkley had, at times, been late arriving at classes for the course (Document T2 Folio 5).

11. Mr Dunkley lived on a boat berthed at the marina, about 3½ kilometres from the college location of the Agricultural Labourers Course at Coffs Harbour.

Evidence of William Van Ryswyk

12. Mr Van Ryswyk was the Trainer/Co-ordinator for the Agricultural Labourers Course offered by Enterprise and Training Company, at Coffs Harbour. He said that he taught most of the course himself. He described the Agricultural Labourers Course as a Skillshare Course and a labour market programme which aimed to provide people with employable skills in agriculture.

13. Mr Van Ryswyk was referred to the following statements he had made in Exhibit 2:

"Peter Dunkley was one of a number of students that did an Agricultural Labourers Course. He resided on a boat in the Coffs Harbour Marina and because of a lack of transport on most days had to walk to Enterprise & Training Company (approx 3½ kms). Consequently he was often late and on a number of days did not attended classes. His attitude to class sessions at times was very negative in that he found much of the course irrelevant to him. On one occasion he came to class in quite an aggressive state which was distressing to me and his fellow students.

Because Peter had difficulty getting to classes on some days when we had field trips I would drive to the Jetty to pick him up. It annoyed me greatly when on occasions he just would not turn up and thereby wasted valuable travelling time."

14. He said that as all course roll records were now destroyed he could not give a precise idea of the number of times Mr Dunkley failed to attend classes or had been late.

15. He said that he had spoken to Mr Dunkley seeking an explanation for failing to attend classes and for his lack of punctuality. The primary reason given was the lack of transport; sometimes no reason was given.

16. During cross-examination as to Mr Dunkley's explanation for his absence from classes or lack of punctuality, he recalled a reason given to him viz. a lack of an alarm clock. However, he was unsure whether lack of electrical power to Mr Dunkley's boat had been a further reason provided to him.

17. During further cross-examination he denied that he had "picked on" Mr Dunkley saying that he did not deal differently with him. Rather, he had treated him equally, or better than other students being aware of Mr Dunkley's transport difficulties in living some distance from the College.

Evidence of Peter Dunkley

18. Mr Dunkley said that he had been told by his Case Manager, under his Case Management Activity Agreement (CMAA), that he would have to undertake the Agricultural Labourers Course. He thought that he might be given some choice in the actual course but in fact was given no choice at all.

19. However, in response to a Tribunal question, he said that there was an alternative offering - a course which, from his description, appears to be related to Caravan Park maintenance.

20. Mr Dunkley said that he was annoyed with being made to do the Agricultural Labourers Course as it was neither relevant, nor of interest, to him. His view was that the course was "all about cows".

21. Mr Dunkley then said his Case Manager had coerced him into signing the CMAA and to do the course. He said that he was told by his Case Manager that if he did not do the course his NSA would be "cut off".

22. Mr Dunkley described his past employment history as casual or seasonal work on fishing trawlers, fruit picking and at mining exploration sites. He also had opportunities for bee-keeping with a family member.

23. Under cross-examination Mr Dunkley acknowledged that for the eight days of classes he had been enrolled in, he had missed two, possibly three days and had been late "a few times". He said that he could not understand why he was breached when others "who attended less" were not breached.

24. Mr Dunkley's explanation for failing to attend classes on the second Monday morning of the course was because of a motor bike license test. He conceded, during cross-examination, that it would have been possible for him to have undertaken this test at a time of the week when there were no classes so as to not affect his participation in the course. Mr Dunkley regarded the license as productive in helping him to find work.

25. Whilst a public bus service was available, he said that he could not afford the fare because of a "tight financial budget".

26. When referred to the following statement contained in a Departmental File Note (Document T5 Folio 10 paragraph 1):

"17/4/97 (1) Bill rang me from ETC [Enterprise and Training Company]. Peter [Dunkley] has missed 2 days completely and has arrived between 9.45 & 10.00 am every other day. He has also not shown today. He also has been disruptive in class & is not showing effort to fully participate in the course."

Mr Dunkley responded with the comment that this statement was "rubbish".

27. When questioned about his contact with either his Case Manager, or Mr Van Ryswyk about his reasons for failing to attend classes, or for being late for classes, Mr Dunkley said that it was "so far back" it was difficult to remember. He thought that he may have told his Case manager on one occasion but was "unsure".

28. Mr Dunkley stated that he felt Mr Van Ryswyk had been argumentative towards him and had singled him out as if he were stupid.

29. Mr Dunkley stated that after he had been breached from the course, he immediately went to the CES to advise that he was willing to continue with the course. However, this request was refused.

Contentions and Submissions of the Parties

30. The Departmental Advocate submitted that a basis of this application for review was the failure of the SSAT to recognise the Agricultural Labourers Course as a Skillshare Course. Referring to Exhibit 3, specifically the description of Skillshare:

* "SkillShare is a community based labour market program which provides training and other employment related assistance, targeted at the most disadvantaged unemployed people in the labour market."

and the Objectives of the Skillshare Programme:

* "The objective of the SkillShare Program is to help Long Term Unemployed (LTU) people and other most disadvantaged people to:

. get and retain employment, or

. proceed to further education and training.

This is achieved through the provision of structured skills training, employment-related assistance including personal support and referral and Enterprise Activities",

she submitted that the Agricultural Labourers Course was a Skillshare course.

31. The Departmental Advocate contended that in signing the CMAA, Mr Dunkley would be aware that if he did not participate in the Agricultural Labourers Course his NSA could be cancelled.

32. She referred to the terms of the CMAA (Document T3 Folio 7) focussing on the two following terms:

* "Referred to Agricultural Labourers Course at Skillshare and participate if selected. Commences 7/4/97" ("hand written terms"); and

* "I agree to accept an offer, participate fully and complete a placement under a labour market or employment related program administered by the Department of Employment, Education, Training and Youth Affairs" ("printed term").

She contended these were complementary terms. Accordingly, Mr Dunkley was required to fully participate in the course.

33. The Departmental Advocate contended that Mr Dunkley had not fully participated in the course, relying on the following factors:

* a failure to attend classes on at least two, possibly three, days of the eight days of the course in which he was enrolled

* on the other days he attended classes he was late in arriving; the time varied from 5 to 30 minutes. The exact number of days he was late was uncertain

* a failure of Mr Dunkley to fully explain his lack of attendance, a lack of punctuality, to the Course Co-ordinator or his Case Manager on all occasions these problems arose

* that Mr Dunkley could have made appropriate arrangements to attend the course or to attend on time. Moreover, that these circumstances were foreseeable so that Mr Dunkley could have avoided them to enable him to fully participate in the course.

34. The Departmental Advocate further contended that, from the outset, Mr Dunkley's attitude towards the course was not a positive one (Document T5 Folio 10).

35. The Departmental Advocate concluded with the submission that the original Departmental decision to cancel Mr Dunkley's NSA was correct because he had failed to fully participate in the Skillshare Course.

36. Mr Dunkley made the following submissions:

* that the course was not relevant to him;

* that he had been coerced by his Case Manager into undertaking the course;

* that, at the time, he had a tight financial budget because of rent arrears and work required on his boat's electrical system;

* the claim that other people doing the course, with similar attendance records to him, were not breached;

* on being breached from the course, his attempts to continue the course being disallowed; and

* whilst acknowledging his lack of attendance and late arrivals to class, these problems arose through no fault of his own and were out of his control.

37. At the end of the hearing, the Tribunal sought further information on the scope and content of the Agricultural Labourers Course. The details were provided by Mr Van Ryswyck on 15 December 1998. The following material are, essentially, from a poster display (Supplementary Exhibit):-

* What the Course is About:

"The course is for people who are considering a career in farming. It introduces participants to the practices of a number of agricultural businesses & their labour requirements. It will make participants aware of industrial issues & the occupational hazards of farming & assist them in developing interview & negotiation skills. The safe use of chemical & an introductory first aid course will be taught."

* What Can be Achieved From the Course:

"On completing the course participants may be in a position to consider on the job training such as provided by agricultural apprenticeships & traineeships."

* Areas of Knowledge and Activities:

"Safe chemical use

Excursions to a number of farming enterprises

Industrial issues

Occupational health & safety

First aid

Rural calculations

Job finding skills"

38. The excursions referred to in paragraph 37 were to enterprises, the Grafton TAFE Fishery School, the Grafton Agricultural Research Station and a banana farm.

The Law

39. The relevant legislation in this case is the Employment Services Act 1994 ("the Act").

40. Subsections 45(5) and 45(6) are the relevant provisions to consider whether Mr Dunkley had taken reasonable steps to comply with his CMAA.

"45.(5) The person is not qualified for a newstart allowance or a youth training allowance in respect of a period unless (in addition to meeting any other requirements set out in the Social Security Act 1991 or Part 8 of the Student and Youth Assistance Act 1973, as the case may be):

(a) .....;

(b) while the agreement is in force, the person satisfied the Employment Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and

(c) .....

45.(6) For the purposes of paragraphs (5)(b), a person is taking reasonable steps to comply with the terms of a Case Management Activity Agreement unless the person has failed to comply with the terms of the agreement and:

(a) the main reason for failing to comply involved a matter that was within the person's control; or

(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person."

Consideration of the Issues

41. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.

42. Based on an assessment of the requirements for Skillshare Programmes (paragraph 30 and Exhibit 3) and the scope and content of the Agricultural Labourers Course (paragraph 37 and Supplementary Exhibit), the Tribunal finds that the Agricultural Labourers Course was a Skillshare Course.

43. The decision of Mansfield J in Secretary, Department of Employment, Education, Training and Youth Affairs v Ferguson (1997) 147 ALR 295 is the benchmark for the interaction between subsections 45(5) and 45(6) of the Act and the construction of subsection 45(6) of the Act.

44. Mansfield J noted that subsection 45(5)(b) has primacy over subsection 45(6) of the Act. He characterised subsection 45(6) of the Act as a filter through which a jobseeker's conduct must pass before the person can be called upon to satisfy the Employment Secretary that he or she had been taking reasonable steps to comply with the terms of a CMAA under subsection 45(5)(b).

45. Therefore, if the jobseeker's failure to comply with one or more terms of the CMAA was neither within the person's control, nor reasonably foreseeable, the person is to be taken as taking reasonable steps to comply with CMAA for the purposes of subsection 45(5)(b) of the Act.

46. If the jobseeker's failure to comply with the CMAA was within the person's control, or reasonably foreseeable, the decision-maker must then consider whether the person was taking reasonable steps to comply with the CMAA under subsection 45(5)(b) of the Act.

47. The Tribunal concludes that, in terms of subsection 45(6) of the Act, the failure of Mr Dunkley to comply with one or more terms of the CMAA [ie, the printed term requirement to fully participate and complete a placement under a labour market or employment related programme, administered by the Department of Employment, Education, Training and Youth Affairs] was within his control and reasonably foreseeable. The Tribunal finds that his failure to attend classes and lack of punctuality in class attendances resulted in his failing to fully participate in the course. In the eight days he was enrolled, he missed two, possibly three days and was late in commencing classes on other occasions.

48. Mr Dunkley's late attendance at classes do not represent "circumstances beyond his control". The problem could have been realistically prevented by Mr Dunkley as he could have done something about it.

49. Based on Mr Dunkley's knowledge and background of the course, his location from the college, as well as the class timetable, the Tribunal finds that the factors which led to his failure to attend classes were "reasonably foreseeable". Furthermore, transport could be provided by the Course Co-ordinator for field excursions (see paragraph 13).

50. Accordingly, the next step in the approach of Mansfield J is to consider subsection 45(5)(b) of the Act in order to determine whether Mr Dunkley's conduct in relation to the agreement as a whole evidences a failure to take reasonable steps to comply with the agreement.

51. As Mansfield J notes, whether the person was taking reasonable steps to comply with the CMAA as a whole, would depend on factors including the person's attitude to performance of the terms of the agreement and attendances on other occasions.

52. The Tribunal finds that the Agricultural Labourers Course could not be described as a course "all about cows". The course was extremely broad in its approach covering many and varied aspects of agriculture (paragraph 37). Given Mr Dunkley's past casual and seasonal employment on fishing trawlers and fruit picking and his interest in bee-keeping, the Tribunal concludes that it would not be unreasonable for him to undertake a course designed to acquire rural skills (paragraph 38). Certainly, it was a more appropriate course for him to undertake than the alternative course offered to him by his Case Manager - "Caravan Park Maintenance". The Tribunal cannot reconcile Mr Dunkley's claim that the course was irrelevant and of no interest to him with the scope and content of the course (Supplementary Exhibit). The Tribunal concludes that Mr Dunkley's attitude to the course was such that he did not "fully participate" in the course according to a term of his CMAA.

53. Furthermore, the Tribunal finds that the general failure of Mr Dunkley to always adequately explain his absences or lateness in attending classes - given they represented a significant proportion for the eight days he was enrolled in the course, are also important factors with respect to his attitude to the course. Some explanation should, at the very least, been provided by Mr Dunkley to the Course Co-ordinator as an indication he intended to "fully participate" in the course according to a term of his CMAA.

54. Accordingly, the Tribunal finds that Mr Dunkley's conduct in relation to the CMAA, as a whole, evidences a failure take reasonable steps to comply with the agreement. Mr Dunkley's conduct in its totality demonstrated a poor attitude to his CMAA obligations.

55. For the above reasons, the Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 27 February 1998 and in substitution therefor decides that the respondent, Mr Peter Dunkley, ceased to be qualified for Newstart Allowance from 18 April 1997.

I certify that this and the 13 preceding pages are a true copy of the decision and reasons for decision herein of Dr EK Christie, Member.

Signed: Denise Burton

Secretary

Date/s of Hearing 10.12.98

Date of Decision 26.2.99

Counsel for the Applicant

Solicitor for Applicant Ms T Guthrie, Departmental Advocate

Counsel for the Respondent

Rep. for the Respondent Respondent appeared in person