Khodr and Department of Family and Community Services [1999] AATA 71 (8 February 1999)

Last Updated: 16 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 24

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N97/934

GENERAL ADMINISTRATIVE DIVISION )

Re TAREK RIFAI

Applicant

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

Respondent

DECISION

Tribunal Ms J A Shead, Member

Date 20 January 1999

Place Sydney

Decision The decision under review is affirmed.

(Sgd) J A SHEAD

..............................................

Member

CATCHWORDS

SOCIAL SECURITY - Newstart Allowance - Activity Test - whether Applicant satisfied the Activity Test - failure to submit Employer Contact Certificate.

Social Security Act 1991 - ss.593(1), 601(1), 601(1A), 601(1B), 601(1C), 601(1D), 601(1E), 601(1F), 601(6), 603A(1) and s.660

REASONS FOR DECISION

20 Janary 1999 Ms J A Shead, Member

1. This application concerns a decision made by a delegate of the Department of Employment, Workplace Relations and Small Business ("the Department") on 20 January 1997 to cancel Mr Rifai's Newstart Allowance. That decision was affirmed by an Authorised Review Officer on 27 February 1997. Mr Rifai appealed the decision to the Social Security Appeals Tribunal ("SSAT"). On 15 May 1997 the SSAT affirmed the decision and Mr Rifai lodged an appeal to the Administrative Appeals Tribunal ("the Tribunal") on 9 August 1997.

2. At the hearing of the application, Mr Rifai represented himself and gave oral evidence in Lebanese. The interpreter was Mr Saliva Couri. The Department was represented by Ms Ann Brimson, Departmental Advocate. Mr Dipak Sud, a Commonwealth Employment Service Officer gave evidence in support of the Department.

3. The history of the application is dealt with in paragraphs 1 and 17 of the SSAT's reasons for decision as follows:

"1. Mr Rifai was in receipt of newstart allowance in 1996. On 6 December 1996 Mr Rifai attended an arranged appointment at the Commonwealth Employment Service (CES). At this appointment Mr Rifai presented two completed Employer Contact Certificates for jobs that he had applied for. The CES did not accept these Employer Contact Certificates because Mr Rifai did not have suitable qualifications for one of the jobs and the other job was not an advertised position. The CES gave Mr Rifai six more Employer Contact Certificates and required him to return them completed on 20 January 1997.

...

17. Section 601(1C) states that `the person must give the Secretary a written statement from each employer whose job vacancy the person applied for that confirms that the person applied for that job vacancy', and Section 601(1D) states that `the statement from the employer must be in a form approved by the Secretary'. In this case Mr Rifai was required to present to his case manager on 20 January 1997 six Employer Contact Certificates completed by employers and confirming that Mr Rifai had applied for job vacancies. It is not in dispute that Mr Rifai did not present the six completed Employer Contact Certificates as required." (T2)

4. Mr Rifai was born on 30 April 1957. On 14 January 1992 Mr Rifai registered as unemployed with the Commonwealth Employment Service ("CES"). On 20 January 1997 the CES cancelled Mr Rifai's Newstart Allowance on the grounds that he failed to satisfy the Activity Test.

5. Qualification of a person for Newstart Allowance is contained in the Social Security Act 1991 ("the Act"). Insofar as is relevant, the Act states as follows:

"593(1) Subject to sections 594 and 598, a person is qualified for a newstart allowance in respect of a period if:

(a) the person satisfies the Secretary that throughout the period the person is unemployed; and

(b) throughout the period, or for each period within the period, the person either:

(i) satisfies the activity test; or

(ii) is not required to satisfy the activity test; and

(c) if subsection 604(1) applies to the person, at all times (if any) during the period when the person is not a party to a Newstart Activity Agreement, the person is prepared to enter into such an agreement; and

(d) if subsection 604(1) applies to the person, at all times during the period when the person is a party to a Newstart Activity Agreement, the person is prepared to enter into another such agreement instead of the existing agreement; and

(e) if the person is required by the Secretary to enter into a Newstart Activity Agreement in relation to the period, the person enters into that agreement; and

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

Note: See subsection (2A) on taking reasonable steps.

(g) throughout the period the person:

(i) subject to subsection (2B), is at least 16 years of age and has not reached the pension age; and

(ii) is an Australian resident; and

(iii) subject to subsection (1A), is in Australia; and

Note: see subsection (3).

(iv) is registered by the CES in an allowance category as being unemployed; and

(h) throughout the period the person has been registered as required by subparagraph (g)(iv) for longer than 12 months; and

(i) the person was not in receipt of a job search allowance or a youth training allowance during the period.

Note 1: a person may be treated as unemployed (see section 595).

Note 2: the activity test is set out in section 601.

601(1) Subject to subsections (1A) and (3), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

(a) actively seeking; and

(b) willing to undertake;

paid work, other than paid work that is unsuitable to be undertaken by the person.

Note 1: For situation in which a person is not required to satisfy the activity test see:

(a) section 602 (certain persons over 50);

(b) section 603 (persons attending training camps in remote areas);

(c) section 603A (special circumstances);

(d) section 603AA (voluntary work.

Note 2: See subsections (2A) and (2B) on what paid work is unsuitable.

601(1A) The Secretary may notify a person (other than a person who is not required to satisfy the activity test) who is receiving a newstart allowance that the person must take reasonable steps to apply for a particular number of advertised job vacancies in the period specified in the notice.

601(1B) If a person refuses or fails to comply with a notice issued under subsection (1A), the person fails to satisfy the activity test in respect of the period specified in the notice.

601(1C) The person must give the Secretary a written statement from each employer whose job vacancy the person applied for that confirms that the person applied for that job vacancy.

601(1D) The statement from the employer must be in a form approved by the Secretary.

601(1E) Subsection (1C) does not apply to a person if the Secretary is satisfied that there are special circumstances in which it is not reasonable to expect the person to give the statement referred to in that subsection.

601(1F) If a person contravenes subsection (1C), the person fails to satisfy the activity test.

601(6) For the purposes of this section, a person takes reasonable steps to comply with a notice under subsection (1A), with a requirement of the Secretary under subsection (2), or with the terms of a Newstart Activity Agreement (as the case requires) unless the person has failed so to comply 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.

603A(1) Subject to subsections (2) and (3), a person is not required to satisfy the activity test for a period if:

(a) the Secretary is satisfied that special circumstances, beyond the person's control, exist; and

(b) the Secretary is satisfied that in those circumstances it would be unreasonable to expect the person to comply with the activity test for that period.

660 If the Secretary is satisfied that a newstart allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the allowance is to be cancelled or suspended.

Note 1: a determination under this section is not necessary in a case where an automatic termination is produced by section 660A, 660B, 660C or 660D (see subsection 647(1).

Note 2: for the date of effect of a determination under this section see section 660L."

6. The provisions which were considered by the SSAT, section 601(1A)-(1E), were introduced by the Social Security Amendment (Budget and Other Measures) Act 1996 (No 84/1996), with effect from 1 January 1997.

CONTENTIONS

7. The issue in Mr Rifai's matter is whether:

1. Mr Rifai complied with the Activity Test; and

2. satisfied the requirement where the Department requires a person to provide evidence of a certain number of specified job applications for advertised specified positions within a specified period.

8. Before the SSAT Mr Rifai contended:

"... there were no suitable positions advertised during the period 6 December 1996 to 20 January 1997, in the type of work which he was experienced in, spray painting and panel beating." (Para 2 of T2)

Further, Mr Rifai contended that repair shops were closed for the Christmas/New Year holidays and that he was not a car detailer or labourer, but an experienced spray painter.

9. The Tribunal had before it the Respondent's Statement of Facts and Contentions which may be summarised as follows:

(a) that by section 601(1A) Mr Rifai was notified on 6 December 1996 that he must apply for six advertised job vacancies during the period 6 December 1996 to 20 January 1997 and provide a written statement from each employer, "Employer Contact Certificates" ("ECCs"), whose job vacancy he had applied for to confirm that an application was made;

(b) that because Mr Rifai failed to return the completed ECCs, he did not satisfy the Activity Test under subsection 601(1B), (1C); and

(c) that section 660 of the Act gives the Secretary the power to cancel Mr Rifai's Newstart Allowance.

10. Mr Rifai told the Tribunal that he had nine years of schooling in Lebanon and that he had not obtained any trade qualifications in Lebanon or, since coming to Australia in 1977, in Australia. Apart from a number of years where he worked as a French polisher in a factory, he had worked as a motor vehicle panel beater or spray-painter. Between 1988 and 30 December 1991, Mr Rifai operated his own smash repair business.

11. On 6 December 1996 Mr Rifai had attended an appointment with Mr Dipak Sud at the CES, Merrylands. Mr Rifai presented two completed ECCs (T4). Mr Rifai was told that the ECCs were not acceptable because in respect of the position of spray-painter, the employer stated "suitable position not currently available" and the other employer stated "applicant not qualified for position sought". Mr Sud gave Mr Rifai six more ECCs and required him to return completed ECCs by 20 January 1997. Mr Rifai told the Tribunal that he read through the CES document entitled "Employer Contact Certificates" which stated in part:

"The following rules relate to the use of your Employer Contact Certificates.

A certificate should be completed ONLY for advertised vacancies. Advertised vacancies include

*Those listed on CES boards

*Those advertised in the press (attach clippings as proof)

*Those advertised elsewhere by the employer (eg. At the employers premises etc).

The employers you approach and the positions you apply for must be suitable for your skills, background and ability. This will be taken into account when assessing your jobsearch efforts.

The Certificate should be handed to the employer for completion after the employment enquiry. The employer should fill out the back of the certificate and return it to you.

Two certificates must be returned personally to the local CES office each fortnight.

Failure to have the Certificate endorsed by an employer and returned to the CES by the due date is a breach of the Activity Test. If you fail to do this and can not prove exceptional circumstances for not completing the Certificate your Jobsearch or Newstart Allowance will be cancelled and a penalty period may be imposed.

If you have any difficulty fulfilling the above conditions please seek assistance from one of our staff members before the return dates on the certificates.

CLIENT DECLARATION

I have read and understood the above conditions. I understand that failure to complete and return the Employer Contact Certificates by the due dates will lead to the cancellation of my allowance, unless reasonable circumstances can be shown." (T3)

Together with another CES document where it was stated "I am aware that if I am unable to prove my job search efforts, ...., my allowance will be cancelled" which Mr Rifai also told the Tribunal that he had read before signing that document dated 22 November 1996.

12. Mr Rifai told the Tribunal that he had looked through newspapers, attended at the CES twice per week to look for advertised positions and he had enquired directly to smash repair businesses for spray-painter positions. In relation to his attendance at the CES, Mr Rifai told the Tribunal that he attended an average of twice a week and that he could not find any spray-painter jobs which did not require him to have a licence.

13. As indicated earlier, evidence was given by Mr Dipak Sud. He stated that on 6 December 1996 he conducted a detailed interview with Mr Rifai . He showed Mr Rifai the CES computer advertised positions in spray-painting, car detailing and unskilled labouring. He said that CES counter staff would have been able to assist Mr Rifai accessing the computer advertised positions. Mr Rifai's evidence that he had "went through the computer advertised positions but that there were no positions advertised" was not accepted by Mr Dipak Sud. Mr Dipak Sud also said that on 6 December 1996, Mr Rifai was shown a number of positions which he could have applied for.

FINDINGS

14. The Tribunal is satisfied that following the interview on 6 December 1996, Mr Rifai understood that when he was issued the six ECCs, they were to be completed by 20 January 1997. Mr Rifai did not return any completed ECCs. The Tribunal does not accept Mr Rifai's evidence that he attended the CES twice weekly and that there were no spray-painting positions for which he was qualified. In regard to the scope of Mr Rifai's job seeking, the Tribunal is satisfied that Mr Rifai's attention had been directed to broaden the scope of his job search applications.

15. The Tribunal finds that Mr Rifai did not submit ECCs for the specified number of six advertised job vacancies during the period 6 December 1996 to 20 January 1997. Thus the Tribunal finds that Mr Rifai did not satisfy section 601(1C) and by virtue of section 601(1F) he failed to satisfy the Activity Test.

16. The Tribunal affirms the decision under review.

I certify that this and the 8 preceding pages are a true copy of the decision and reasons for decision herein of

Ms J A Shead, Member

Signed: Ian Taylor .....................................................................................

Associate

Date/s of Hearing 30 January 1998

Date of Decision 20 January 1999

Solicitor for the Applicant Applicant was self-represented

Advocate for the Respondent Ms A Brimson,

Department of Employment Workplace Relations and Small Business