When an Employment Service Provider decides to penalise an unemployed worker, they must adhere to strict guidelines surrounding the Job Seeker Compliance Framework. This means there are many areas where Employment Service Providers can overstep the mark and breach social security law.
3.1 Job Seeker Compliance Framework Restrictions
If the Provider does decide to use the job seeker compliance framework, they must report the incident to DHS on the same business day that they make this decision. Providers will only have a short timeframe from the non-compliance event to make this decision. The timeframes are:
- for non-attendance at a Provider Appointment—the same Business Day as the missed Appointment
- for non-attendance at an activity or job interview—within 10 Business Days of the event
- for unsatisfactory Job Search Requirement—within 10 Business Days of the Job Search Period end date.If, after considering all relevant factors, the Provider believes that reporting the incident to DHS is not the most appropriate re-engagement strategy to secure the job seeker’s ongoing participation, they should record this decision in the Department’s IT Systems and:
- for Appointments—where the Appointment is not a Re-engagement Appointment, ensure the job seeker complies at the next available opportunity
- for activities—consider if the job seeker should make up time in the activity or continue to participate on the next scheduled day of the activity
- for Job Search—record that discretion has been used, but closely monitor Job Search for the next month
Job Seeker Compliance Framework Guideline, p. 8-9
3.1.2 Restrictions Reporting Non-Compliance
When reporting non-compliance, Providers must include information relevant to the incident in the report. The following are the types of reports to be submitted for various kinds of non-compliance and the potential consequences of each.
Failure to attend a Provider Appointment
- Non-Attendance Report (NAR)—Providers submit this report through the Department’s IT Systems so that a job seeker’s income support payment is suspended until they attend their next Appointment·Provider Appointment Report (PAR)—Providers submit this report when they want to recommend to DHS that a financial penalty should be applied in relation to the job seeker’s non-attendance and suspend a job seeker’s income support payment until they attend their next Appointment. A PAR can only be submitted after contact has taken place between the Provider and job seeker to confirm Reasonable Excuse does not exist.
Job Seeker Compliance Framework Guideline, p. 10
3.1.3 No Show, No Pay Penalties Restrictions
A job seeker may incur one or more NSNP failures if they:
- fail to participate in a compulsory activity required by a Job Plan,
- fail to comply with a serious failure requirement (also known as a compliance activity – see below),
- engage in misconduct while participating in an activity,
- fail to attend a job interview, or during a job interview, deliberately behave in a way that results in them not receiving a job offer.
Guide to Social Security Law 3.1.13.20
A decision maker cannot apply a No Show No Pay failure when the job seeker has a reasonable excuse for failing to comply with a requirement and, when the job seeker has failed to attend an activity, they gave prior notice of the reasonable excuse.
A decision maker cannot apply a failure if the activity the job seeker failed to attend or participate in should not have been included as a compulsory activity in their Job Plan because the activity was not suitable or was explicitly precluded by social security law
Guide to Social Security Law 3.1.13.20
Furthermore, No Show No Pay penalties can only be deducted from the following payment after the unemployed worker has been propoerly notified
The Secretary must include in a determination under this section the instalment period in which a penalty amount (see section 42T) for the no show no pay failure is to be deducted from the person’s instalment of a participation payment, provided that the penalty amount may not be deducted until at least the instalment after the first instalment made following notification to the person of the no show no pay failure.
Social Security Administration Act 1999, 42C