Piotto and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 319 (22 April 2009)

Last Updated: 7 May 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 319

ADMINISTRATIVE APPEALS TRIBUNAL ) No. 2009/0867

)

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LUIGI PIOTTO

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS Respondent

DECISION

Tribunal:

G.D. Friedman, Senior Member

Date: 22 April 2009

Place: Melbourne

Decision:

For reasons given orally at the hearing the Tribunal affirms the decision under review.

(sgd) GD Friedman
Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G.D. FRIEDMAN, Senior Member

No. 2009/0867

PIOTTO

and

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT

AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

WEDNESDAY, 22 APRIL 2009

MR L. PIOTTO appears in person

MR T. DE URAY appears for the respondent
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN: Well, in this matter there’s not really a dispute as to the facts and all the issues involved and they refer to a decision by Centrelink, affirmed by the Social Security Appeals Tribunal in which a Centrelink officer applied a participation failure to Mr Piotto for failing to enter into a Newstart activity agreement and to cancel his Newstart allowance, effective from 26 September 2008. So the issues are very clear that are whether Mr Piotto has failed to comply with a requirement to enter into an activity agreement and, if so, whether he had a reasonable excuse for doing so. And in reaching a decision on these issues, I am, of course, bound by the relevant legislation that applies.

Mr Piotto had been on Newstart allowance since November 1998. He was sent a letter on 18 September 2008 requiring him to attend to the interview with MatchWorks on 30 September 2008 and to enter into an activity agreement. The terms of that agreement are set out in the tribunal documents T3 and that activity agreement was a standard agreement between MatchWorks and Jobseeker, consistent – well, it includes part A compulsory activities and lists a number of dot points setting out the requirements of the agreement.

In the letter, Mr Piotto was warned that the consequences for failing into the activity agreement were that a participation failure may be placed on his record and his Newstart allowance may be ceased until he enters into an agreement. There is no dispute that Mr Piotto attended the appointment on 30 September 2008 with MatchWorks and that he did not sign the agreement as it was presented to him. He signed the agreement, having made three alterations. The first one was that he altered the number of jobs search contacts per fortnight from 10 to four and the fifth requirement, that is, attended the second interview with AEIC in Oak Park for full-time work for the dole, dates be confirmed from 13.6.2008 to 15.12.2008 – that has been crossed out and deleted by Mr Piotto, as has the next requirement, that is, attend full-time work for the dole interview with AEIC, Oak Park, at date to be scheduled by on 15.12.2008, so he deleted that one as well.

He also said that the final requirement that he attend interviews with MatchWorks Moonee Ponds to review Jobseeker progress and/or activity agreement on 13.08.2008, 13.10.2008, 30.12.2008, was not valid because he had been told that those dates were, in effect, nominal dates and that they would give him other dates as required and he said that that was a flaw in the activity agreement. After Mr Piotto had amended the activity agreement and signed it and dated it 30 September 2008, MatchWorks declined to consent to the deletions by deciding not to sign the activity agreement and as a result of that, Centrelink decided to cancel the Newstart allowance on 26 September 2008.

The main arguments put forward by Mr Piotto why he thought the decision to cancel was wrong, include his belief that the activity agreement is illegal and contains lies and is unreasonable as an agreement itself. He said that MatchWorks does not have the secretary’s power to require him to enter into the agreement and he believes 10 job contracts a fortnight is unreasonable because Centrelink requirements are, in fact, four and that’s why he changed it to four. Similarly, the conditions relating to attending interviews for work for the dole interview are unreasonable. He believes that efforts to force him to work for the dole are unreasonable and vindictive and he shouldn’t be required to attend those interviews.

The appropriate section of the Social Security Act 1991 is section 593, which requires a jobseeker to satisfy the activity test and the activity request – test, requires a jobseeker to be actively seeking and be willing to undertake paid work, other than paid work that is unsuitable to be undertaken by the person and that section is 601 subsection (1). Section 593, subsections (1)(c) and (d), require that in qualifying for a Newstart allowance, Mr Piotto was required to be prepared to enter into a Newstart activity agreement or enter into another such agreement instead of the existing one, if required, and another such agreement is provided for in section 605 subsection (2) and section 624 subsection (1)(c) provides that a person who commits a Newstart participation failure, if the person fails to comply, would require him to enter a Newstart activity agreement.

I have listened to the evidence from Mr Piotto, particularly his claims that the agreement is unfair; its unreasonable; it contains lies; therefore he should not have been requested to sign it and therefore he was not committing any breach by acting the way he did in amending the terms of the agreement. It has submitted to me by the respondent that the relevant decisions of this tribunal are Re Dunn and Secretary, Department of Family and Community Services – the reference for that is (2004) 80 Administrative Law Decisions 701 and Re Frketic and Secretary Department of Family and Community Services [2005] AATA 721.

Those decisions related to a failure to sign an agreement presented to the applicant, the applicant in those particular cases, and in particular, Mr Frketic, as did Mr Piotto in this case, attempted to make amendments to the activity agreement that were not accepted. In that case the tribunal concluded that he did not enter into the agreement as required and found against him for reasons that are similar to the facts situation here. Dealing with the number of search contacts per fortnight, Mr Piotto claims that Centrelink’s requirement was four, therefore anything more than four was unreasonable. I would have thought that, regardless of any broad view that Centrelink may or may not have about the number of contacts per fortnight, it is really a question of whether, for a particular jobseeker, a number of job search contacts per fortnight is considered appropriate.

There is no evidence before me that 10 job search contacts per fortnight is unreasonable, or that four is any more reasonable than 10 for that reason. I find that, in the absence of persuasive evidence to the contrary, that 10 job search contacts per fortnight is not unreasonable. As far as work for the dole is concerned, Mr Piotto expressed some reluctance to undertake any activities relating to job work for the dole activities. He said he had attempted to do so in the past and, for various reasons, these attempts were unsuccessful. He said he didn’t want to do work for the dole particularly, because there were no guidelines for work for the dole and he claimed that anything requiring him to attend interviews for work for the dole was vindictive and he said it’s because he had not signed activity agreements in the past, and I take that as meaning that he was being punished, or he felt he was being punished for his previous failures to attend – to sign activity agreements.

I am not convinced that Mr Piotto is being punished as such. There is no evidence before me to persuade me that that’s the case. Mr Piotto may well have refused to sign activity agreements, but that’s not the same. There’s no necessary connection between that and any vindictiveness towards him by the job network provider, MatchWorks. In my view, it’s perfectly reasonable for an activity agreement to include, not only job searches, but to attend interviews with the purpose of pursuing possible work for the dole schemes and I’m not satisfied that any lack of guidelines in relation to work for the dole schemes should preclude conditions being placed in an activity agreement that were deleted by Mr Piotto. So I don’t accept his arguments for the deletions of those three matters.

As far as the final matter with which Mr Piotto did not agree, and that is attend interviews with MatchWorks Moonee Ponds on three specific dates, he said that this constituted a lie because he was told you don’t really have to attend the interviews on those dates. He said that those dates were not accurate and he was told they would be around every two weeks and almost to the extent of, well, don’t worry about those dates, just sign the form. That may well have been Mr Piotto’s perception, but there is no evidence before me from anybody at MatchWorks or anyone else to corroborate the views put to me by Mr Piotto that those dates were anything but dates where he had to attend.

There is certainly nothing in writing from MatchWorks and nothing to indicate whether - if any comments were made, they were made after the agreement was signed or the agreement was proposed to be signed or not signed. And I notice also that Mr Piotto has not deleted those – or has not deleted that particular condition of the agreement. Mr Piotto has freely admitted that whenever he disagreed with a condition, that he would and he has, deleted that condition. He hasn’t deleted this condition, so I’m not satisfied that that condition is either unreasonable, inaccurate or constitutes lies.

On the question of whether Mr Piotto can be regarded as having a reasonable excuse for not signing an activity agreement, section 624 subsection (2) is the appropriate section, together with the Social Security (Reasonable Excuse) (Department of Employment and Workplace Relations) Determination 2006, which is made pursuant to subsection 624 subsection (2)A of the Act and that refers to reasonable excuses and the matters which the Secretary, that is the tribunal, must, by legislative instrument, determine that the secretary must take into account, in deciding whether, for the purposes of subsection (2), a person had a reasonable excuse for committing a Newstart participation failure. Given my finding that there has been a participation failure, it falls for me to determine whether there is a reasonable excuse.

Mr Piotto says that the reasonable excuse is basically the agreement is flawed. He says that it is unreasonable and that MatchWorks has no authority in any case. I have already stated for other purposes, that I don’t agree with his submission that the agreement is flawed and I don’t agree that the terms are unreasonable and I have already found that I don’t agree that the agreement contains any lies. The determination that I have referred to, which is the Social Security reasonable excuse determination, lists a number of matters to be taken into account in determining if a person had a reasonable excuse and in subsection (2) the matters are listed as non-permanent location on the streets; emergency accommodation; literacy and language skills; illness, impairment or condition, and it goes on, cognitive or neurological impairment etcetera; death of immediate family member; drug or alcohol dependency and subsection (3) states that subsections (1) and (2) do not apply, unless the secretary is satisfied that the matter has significant effect on the person’s capacity to comply with a requirement or the provisions of the Act to which the failure or refusal relates.

In my view, none of those matters in subsection (2) apply, so under subsection (3) – well, subsection (3) can’t apply because none of the matters in subsections (1) and (2) have any effect on Mr Piotto’s capacity to comply with the requirement to which the failure or refusal relates. So I find that there is no reasonable excuse for his failure to comply.

The other matter which is the subject of Mr Piotto’s application is that he believes that MatchWorks did not have appropriate delegation to require him to enter into an activity agreement and he said that when he was required to attend the interview, at the interview the MatchWorks representative should have provided him with the appropriate authority and that not being done, he said that the agreement was not valid. In any case, he said that they did not have appropriate authority any way. Section 605 subsection (4) of the Social Security Act provides that a Newstart activity agreement is between the person and the Secretary and section 234 of the Social Security Administration Act 1999 provides powers of delegation.

Under section 2341 of the Administration Act, in my view there is effective delegation by the Secretary to MatchWorks under its powers under section 605 subsection (4) to enter into a Newstart activity agreement. The instrument executed on 28 June 2008 by the Secretary, delegates the power to each person engaged by an employment service provider and in my view, MatchWorks is an employment service provider, as defined in subparagraph (iii), subsection (B) of the instruments. The question of delegation has been raised by Mr Piotto in the past. Nothing that he said today changes the views I expressed last year, in a similar situation that there has been adequate delegation. The fact that a person at an interview doesn’t present a particular instrument to the satisfaction of the job seeker, does not necessarily mean that the job service, employment service provider, is not properly delegated under the legislation to require the person to enter into an activity agreement. For those reasons, I affirm the decision under review.

END OF EXTRACT