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:

1. fail to participate in a compulsory activity required by a Job Plan,
2. fail to comply with a serious failure requirement (also known as a compliance activity – see below),
3. engage in misconduct while participating in an activity,
4. 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

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 Social Security Appeals Tribunal by calling 1800 011 140

(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.

Job Seeker Compliance Framework Guideline, p. 6

3.3     Waiving 8-week Non-Payment Penalties

Following the submission of a Serious Failure PR, DHS may apply an eight-week nonpayment penalty during which the job seeker will not receive their income support payment. This penalty can be waived by the job seeker agreeing to undertake a Compliance Activity for eight weeks. (p. 10)

                                                       Job Seeker Compliance Framework Guideline, p. 10

3.3.1     Waiving a Failure to Meet Job Search Requirements Penalty

Providers submit this report when they have assessed and recorded that the job seeker’s Job Search efforts are unsatisfactory for the Job Search Period. DHS will investigate the PR and if applied, the job seeker may need to complete a Job Seeker Diary for up to 12 weeks and then return that to DHS

Job Seeker Compliance Framework Guideline, pp. 9-10

3.4        Employment Service Provider’s Compliance Options (Appointments)

Below is a list of the compliance options Employment Service Providers have to penalise unemployed people when they do not attend appointments:

In addition to reflecting the job seeker’s attendance/participation in their requirement, the status reflects the Provider’s decision about any non-attendance or non-compliance. The compliance status options that are available to Providers in the Department’s IT Systems are:

Rescheduled (RESC)—The Provider thinks that the job seeker has a Valid Reason for not complying (before the requirement start time) and the Provider decides to reschedule the requirement

Attended (ATT)—The job seeker attended or participated in the requirement where they have arrived on time and at the correct location; behaved appropriately; treated staff and others with respect; and participated for the duration of the requirement

 Did Not Attend Valid (DNAV)—The job seeker did not attend or participate in the requirement; however, the Provider thinks that the job seeker had a Reasonable Excuse

 Did Not Attend Invalid (DNAI)—The job seeker did not attend or participate in the requirement and the Provider thinks that the job seeker did not have a Reasonable Excuse, or contact could not be made and the Provider will be using the compliance framework

 Did Not Attend Discretion (DNAD)—The job seeker did not attend or participate in the requirement and the Provider thinks that the job seeker did not have a Reasonable Excuse or contact could not be made, and the Provider has decided not to report the non-compliance to DHS because it is not the best strategy to re-engage the job seeker at that point in time

 Did Not Enter into or sign a Job Plan (DNEP)—The job seeker attended or participated in their requirement but did not agree to a Job Plan or sign an updated Job Plan either in person or online through the Australian JobSearch website.

Job Seeker Compliance Framework Guideline, pp.7-8

3.4.1   Employment Service Provider’s Compliance Options (Job Search)

• Satisfactory—The Provider assesses that the job seeker has met their Job Search Requirement for the Job Search Period

• Unsatisfactory—The Provider assesses that the job seeker’s Job Search efforts for the Job Search Period are unsatisfactory to meet the requirements in their Job Plan and they will use the job seeker compliance framework

• Unsatisfactory–Discretion—The Provider assesses that the job seeker’s Job Search efforts are unsatisfactory, but the Provider thinks that using the job seeker compliance framework is not the best way to help the job seeker to improve their Job Search efforts at that time.