According to social security law, Employment Service Provider’s cannot make compliance decisions. The role of Employment Service Provider’s is to send reports to Centrelink, who then make a compliance decision. Consequently, Newstart recipients who want to appeal against a Employment Service Provider Penalty must go through Centrelink.
3.2 Launching an Appeal of a Compliance Decision
By law, Centrelink are required to investigate all Connection Failure Participation Reports submitted by Employment Providers (such as No Show No Pay reports, 8-week suspensions etc).
The Job Seeker Compliance Framework issued by the Government states that
for all Participation Reports and Provider Appointment Reports, DHS will investigate the incident to determine if a failure occurred, which includes whether Reasonable Excuse existed and whether a participation failure should apply and why.
Job Seeker Compliance Framework Guideline, p. 11
However, in practise Centrelink do not conduct a full and thorough investigation of Providers reports unless they are prompted by the job seeker.
There are a number of ways – albeit very time consuming – that you can pressure Centrelink to properly review a Providers recommendation:
(1) Call Centrelink’s complaints and feedback line on 1800 132 468 (free call unless from a public phone or mobile which may be timed and charged at a higher rate)
(2) Contact your local Legal Aid or Welfare Rights groups
(3) Submit an official Centrelink review form and post it to any service centre
(4) Report your complaint to the Administrative Appeals Tribunal. Click here for more details.
(5) If your report to the Social Security Appeals Tribunal is rejected, you can review that decision by contacting the Administrative Appeals Tribunal on 1300 366 700. This must be done within 13 weeks of the Social Security Appeal decision.
(6) If these avenues do not resolve your complaint to your satisfaction, you can contact the Commonwealth Ombudsman by going to ombudsman.gov.au or calling 1300 362 072
3.2.1 Your Right to a ‘Reasonable Excuse’
Before your Employment Service Provider can issue a Provider Appointment Report (PAR) to recommend to Centrelink that you should face a financial penalty, they must contact you on the day of being made aware of the compliance to ensure a reasonable excuse “does not exist”.
This means that if your Employment Service Provider issues you with a financial penalty without contacting to see if you have a reasonable excuse, the penalty is illegal.
As stated in the Job Seeker Compliance Framework Guideline
“A Provider Appointment Report (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. 9
3.2.2 Reasonable Excuse Definition
Under Social Security Law, a reasonable excuse has a very vague definition. Below is a excerpt of the Job Seeker Compliance Framework issued by the Government:
“When determining whether a reason for non-attendance is valid, Providers will need to use their judgement and knowledge of the job seeker. Generally, the measure of ‘validity’ is whether a member of the public would accept the circumstances as reasonable. For example, given that the focus is for job seekers to develop work-like behaviours and move into sustainable paid employment, would the reason that the job seeker provides be accepted by an employer?
Based on the discussion with the job seeker, the Provider must assess whether the jobseeker had a Reasonable Excuse for failing to comply with the requirement. A ‘Reasonable Excuse’ is an excuse that would seem reasonable to a member of the public. Given that each situation is different, Providers need to consider what is reasonable in the specific context of the non-compliance.
There are two stages in assessing whether the job seeker has a Reasonable Excuse for failing to comply with the requirement:
Providers must consider why the job seeker did not comply.
If the job seeker provides an acceptable reason, the Provider must then consider why the job seeker did not give prior notice. Where a job seeker does not give prior notice of their inability to attend and it would be reasonable to have expected them to do so, they do not have a Reasonable Excuse. In some instances, prior notice will not be relevant for Providers to consider—for example; inappropriate behaviour or declining suitable paid employment”
Job Seeker Compliance Framework Guideline, p. 6-7
3.2.3 Unreasonable Excuse Determination
For an Employment Service Provider to find an Unemployed Worker’s excuse unreasonable the Employment Service Provider are required to meet the following requirements:
- Providers must ensure they have mechanisms in place in their organisation to allow job seekers to make timely contact with their Provider—for example, answering machine, dedicated job seeker phone lines or the ability to accept reverse charge phone calls from job seekers.
- The attempt to contact the job seeker can only be made by phone or email, because the decision on the next steps (that is, whether the compliance framework should be utilised) must be made on the same Business Day.
- The Provider then needs to determine what is acceptable in the context of the specific situation. Providers must consider why the job seeker was unable to meet their requirements and whether it is a valid excuse for non-attendance.
- Providers should consider the degree of flexibility afforded to the job seeker in the past and what effect has this had on the job seeker’s compliance with requirements (for example, have there been many instances of non-attendance or have Appointments/activities repeatedly been rescheduled).
- In instances where a job seeker makes contact before their requirement but did not have a Valid Reason for not being able to meet their requirement and was advised that they were still required to attend, the Provider must still attempt to contact the job seeker on the same day that they miss that requirement and document this attempt in the Department’s IT Systems. This is to confirm that no other circumstances prevented the job seeker from attending. Unless other circumstances prevented the job seeker from attending, the job seeker does not have a Valid Reason for non-compliance.