Long and Department of Family and Community Services [2000] AATA 33 (11 January 2000)

Last Updated: 4 February 2000

DECISION AND ORAL REASONS FOR DECISION [2000] AATA 33

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/146

General Administrative DIVISION )

Re JAMIE LONG

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION AND ORAL DECISIONS FOR DECISION

Tribunal Senior Member WJF Purcell

Date 11 January 2000

Place Adelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Newstart Allowance - rate reduction period - whether applicant unreasonably delayed entering agreement - whether applicant intended to ever sign agreement - assessment of applicant's evidence

Social Security Act 1991 ss.593, 605, 625, 644AA

ORAL REASONS FOR DECISION

11 January 2000 Senior Member WJF Purcell

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 19 March 1999, which affirmed the decision of an authorised review officer (ARO) of 18 February 1999, to impose a rate reduction period of 26 weeks, from 17 December 1998 until 16 June 1999, on the basis that the applicant had unreasonably delayed entering a Newstart Activity Agreement.

2. The evidence before the Tribunal comprised documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with exhibits tendered by the parties. The applicant appeared on his own behalf and gave oral evidence. The respondent (the Department) was represented by Ms Hunt, and called Ms Hooper, from Employment National Limited, and Ms Greville, from Centrelink, as witnesses who gave evidence by way of telephone link up.

3. The applicant had been in receipt of Newstart Allowance since December 1995. Qualification for Newstart Allowance is set out in section 593 of the Social Security Act 1991(the Act). Section 605(1) of the Act provides that in satisfying the Activity Test the Secretary may require the person to enter into a Newstart Activity Agreement (Agreement) if the person who had made a claim, or is in receipt of Newstart Allowance, is not a party to an Agreement. Section 605(1) of the Act is subject to notice of the requirement being given to the person. Section 605(3) of the Act provides that the Secretary is to give a person who is required to enter into an Agreement notice of the requirement and the places and times at which the Agreement is to be negotiated.

4. The applicant was sent a letter dated 1 December 1998 telling him of the interview place and time, and that at the interview he and the Job Network member would negotiate an Agreement [T3/23]. The applicant attended the interview, which was organised by Employment National, at the time, date, and place arranged in the letter. At the interview the applicant was provided with a copy of the Agreement, a copy of which is attached to these reasons and marked "A" and he was requested to read it, discuss it as necessary and to sign it.

5. The applicant did not sign the Agreement and on 17 December 1998 Ms Hooper recommended to Centrelink that the applicant may have breached his obligations by unreasonably delaying entering into the Agreement. Ms Hooper attached a handwritten file note which reads in part [T5/26-27]:

"Jamie did not wish to sign the Agreement while it included Jobseeker declaration b), ie 'I must accept a suitable job offer that becomes available even if I am doing training'. He advised that he previously had to give up 2 days per week paid work to do a course at TAFE, because the evening classes were full. He advised that he 'could not be in two places at once', and had to 'do the training to look for work longer term.

I explained that while he is on Newstart Allowance he is required to put suitable paid work above training, unless he went onto an AUSTUDY approved course. I gave him the opportunity to book in for another interview with me, to have the chance to reconsider the terms, but he told me that his decision would still be the same, ie not wanting to sign the Agreement containing the disputed clause.

I advised that I did not have authority to delete that clause, and he would need to discuss it with Centrelink. He did not wish to go onto Centrelink premises, so authorised me to phone Centrelink from here. Centrelink ended up speaking with him via our phone direct. The clause had to stay, or Jamie risked reduction or stopping of his allowance. Jamie still did not wish to sign the Agreement. I advised him that I had no option but to recommend a breach for failure to agree to terms for an Activity Agreement, and that Centrelink would contact him further. He told me that he appreciated 'I was only doing my job', that he still did not agree with the clause though."

6. On 17 December 1998, the delegate at Centrelink, who was the Manager of the branch, J. Jones, imposed the breach. In accordance with section 593(1)E of the Act, the applicant was no longer qualified for Newstart Allowance. Section 625 of the Act sets an activity test penalty for a failure to enter a Newstart Activity Agreement. Section 644AA of the Act sets the period of 26 weeks for the Activity Test breach rate reduction, and Section 644AE sets the amount of the reduction. As this was the first breach in a 2 year period, the applicant had imposed upon him an activity test breach rate reduction of 18 per cent for 26 weeks, commencing on 17 December 1998 and ending on 16 June 1999.

7. The applicant applied for review of the decision, and on 18 February 1999 the ARO affirmed the decision and found [T11/40]:

"5.1 Mr Long is in receipt of Newstart Allowance.

5.2 The customer was required to enter a Newstart Activity Agreement.

5.3 On 16 December 1998 refused to sign an Agreement because he would not agree to the term, "I must accept a suitable job offer that becomes available even if I am doing training".

5.4 Mr Long declined the option of continuing to negotiate the agreement at a later date.

5.5 I am satisfied that the term in question was reasonable.

5.6 Mr Long has unreasonably delayed entering into a Newstart Activity Agreement."

8. The ARO affirmed the decision and the applicant, on 22 February 1999, applied for review to the SSAT which, on 19 March 1999, affirmed the decision. In the course of its reasons for decision the SSAT stated [T2/13-14]:

"The Tribunal gave careful consideration to the provisions of section 607(1). Mr Long was breached, that is taken to have failed the Activity Test, the day after he refused to sign a Newstart Activity Agreement. He had suggested to the Tribunal that this should not be considered unreasonable delay. The Tribunal talked with Mr Long about his reasons for refusing to sign the agreement. In particular, he had disagreed with term (b). The notes on file from the employment officer at Employment National indicated that Mr Long had indicated at the time that he would never agree to term (b). He was, apparently offered an opportunity to book in for another interview and to have the chance to reconsider the terms and the notes indicate that he said that his decision would still be the same, that is he would not want to sign the agreement if the disputed clauses were not removed. The authorised review officer had made a finding that Mr Long had declined the option of continuing to negotiate the agreement at a later date.

Mr Long did not dispute that this was what he had said to the employment officer, or that he would have continued to refuse to sign the agreement with clause (b) and handwritten clauses still forming part of the agreement."

9. The applicant has applied to this Tribunal for review of the SSAT decision, and submits that he attended the interview with good will, he expected the interview would be in private, and he was confronted by a person who did not understand the labour market in Broken Hill, who talked only about the legal aspects of the Act. He expected that the interviewee would have his work resume on the table. The interview was unusual and they did not get past a discussion that his situation was not negotiable. The applicant maintains that this made him think he was not there to discuss work, or his work resume, but simply to sign the required form.

10. The applicant maintains that he did not refuse to sign the Newstart Activity Agreement. He insisted that Ms Hooper discussed with him the types of employment which would be "suitable employment" in the light of his work-related injury and his work resume. When she was unwilling to sit and discuss it with him civilly, in accordance with the Department's "Employment Services Industry Code of Conduct" (details of which he says he was aware of before the interview) he left the interview.

11. The Department argues that the applicant refused to sign the Agreement. Clearly, he breached the legislation because his conduct was unreasonable delay in entering the Agreement, and failure therefore to satisfy the activity test. The activity test breach reduction applied by force of legislation.

12. It is clear from the applicant's submissions at the Hearing that he continues to hold strongly to the conviction that all the terms of the Agreement were subject to negotiation between him, Centrelink, and Employment National. I note, however, that the form of the Agreement was approved by the Secretary of the Department of Employment, Education, Training and Youth Affairs, Mr S. Sedgwick, on 25 April 1998 [Exhibit R3/2]. In accordance with the form, the job seeker is required to sign a declaration which states in part:

"I acknowledge that the terms of this Agreement have been negotiated between the Job Network member and myself. I agree to carry out the activities that are listed on the attached schedules. I also understand that:

a) I must demonstrate that I am willing to do everything I can to get a job and to undertake suitable paid work;

b) I must accept a suitable job offer that becomes available even if I am doing training;

c) If I do not accept a suitable job offer my allowance may be reduced or stopped for a period of time and my participation in Intensive Assistance may be cancelled.

d) If I do not keep to the terms of this Agreement my allowance my be reduced or stopped for a period of time and my participation in Intensive Assistance may be cancelled;

e) I may be required to enter into a new or revised Agreement;

f) I can ask the Job Network member for this to be changed at any time;

g) I must contact, attend or provide information to the Job Network member when I am asked about my progress under, or compliance with, this Agreement;

h) I must tell the Job Network member when I cannot attend a job interview or do an activity;

i) I must still do the agreed activities even if my unemployment allowance is stopped or reduced because I failed to comply with my obligations."

13. The Job Network member signs a declaration at the base of the page and the activities agreed upon are handwritten at the end of the Agreement, or, one assumes, if there is insufficient space, they are attached as attachments, as stated in the Agreement.

14. The opening paragraph of the Agreement states however:

"The aim of this agreement is to help the Job Seeker get a job. This agreement and each of its terms are required to be negotiated between the Job Network member, who is providing intensive assistance and the Job Seeker in each case."

15. I consider that the "Job Seeker Declaration" is not a term of the Agreement, however, that can be negotiated; but an acknowledgment by the job seeker of his/her obligation to carry out the activities agreed upon between him/her and the Job Network member.

16. Turning to the question as to whether the applicant unreasonably delayed entering into an Agreement, he gave oral evidence that he did not refuse to sign the Agreement because clause (b) was not deleted, but that he and Ms Hooper never got past the stage of discussing that his situation was not negotiable, and he simply left the meeting. He denied in evidence that he told the SSAT that he refused to sign the Agreement, as stated by the SSAT at T2/13-14, and he denied also that he told Ms Hooper that even if offered a further interview, he would not reconsider the position. He would never, in effect, sign the Agreement with that clause included.

17. The applicant was not an impressive witness. I found his evidence convoluted and contradictory, and I prefer to rely upon the evidence of Ms Hooper and Ms Greville and upon the documentary evidence in any area of dispute in the evidence.

18. I accept Ms Hooper's evidence to the effect that the interview followed a standard format, with subsequent individual interviews either on the same day or at a later date. I accept her evidence also, that the applicant told her that he would not sign the Agreement unless clause (b) was deleted, and that he repeated two or three times "no way would I sign that Agreement with that line in it".

19. I accept Ms Greville's evidence that during her conversation with the applicant in December 1998, she told him that he could continue to pursue his studies as long as he actually sought work and organised his study schedule so that he could perform full-time suitable work if it were available.

20. It is clearly the applicant's view, that as he was at that time studying information technology in the day time, and working part-time as a tow-truck driver at night that this was quite "suitable work", and he was the best judge of what work was suitable for him. It is also clear on the evidence of Ms Hooper and Ms Greville that only when a person in the category of needing "intensive assistance" has signed an Agreement that the question of whether any work that becomes available is "suitable work" in the light of the job seeker's disabilities or disadvantages becomes a relevant question. The applicant did not sign the Agreement, and there were no discussions therefore, regarding suitability of any work.

21. I have examined the evidence closely and in detail and I have taken into account the parties' submissions. I am satisfied, on the evidence, that the applicant refused to sign the Newstart Activity Agreement on 16 December 1998, and that the manner of his refusal was such that he indicated that this refusal would persist in the future, and I consider that the applicant's refusal to sign the Newstart Activity Agreement in proper form was indicative of unreasonable delay in entering a Newstart Activity Agreement. In accordance with the legislation, the applicant had breached the activity test and a rate reduction period was properly imposed under section 644AA of the Social Security Act 1991.

22. For these reasons, the Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 11 January 2000

Date of Decision 11 January 2000

Counsel for the Applicant In person

Solicitor for Applicant -

Counsel for the Respondent Ms C. Hunt

Solicitor for the Respondent Centrelink