3.1
This chapter explores the extent of support for the bill and examines specific concerns raised by participants during the inquiry.
General views on the bill
3.2
There was support for the intent of the bill to update and streamline the social security law. The need to simplify the law was acknowledged by a number of participants, including the Australian Council of Social Service (ACOSS),
Jobs Australia, and the National Employment Services Association (NESA), which welcomed 'efforts to modernise and streamline our social security law'.
3.3
Similarly, the Council of Single Mothers and their Children (CSMC) noted that the Explanatory Memorandum for the bill contained a 'coherent rationale for rewriting and improving' the social security law. It went on to state that:
We particularly note and agree with the referred finding of the Senate Standing Committee on Legal and Constitutional Affairs in 1993 in its report titled The Cost of Justice: Foundations for Reform, which emphasised the need for the social security law to be comprehensible to members of the public who rely on it and to those who administer it…
3.4
There was also support for the move to digital employment service provision. For example, while cautioning that the move to digital services would not benefit all job seekers equally, The Foundation for Young Australians and the Tomorrow Movement also noted that it offered positive 'transformative potential' for some job seekers.
3.5
However, a number of participants—including those referred to above—raised concerns about the time provided to engage with streamlined provisions and the potential for unintended consequences, such as the loss of existing job seeker protections. Stakeholders also raised concerns about the provisions of the bill that would:
enable online service provision as part of the New Employment Services Model (the new model);
allow the Employment Secretary to determine employment programs to which a variety of Commonwealth laws would not apply; and
align payment start dates for job seekers using online employment services with those managed by a provider.
3.6
Overall, a number of participants expressed a desire for more time to consult on the proposed changes, along with more comprehensive implementation of the recommendations of the Employment Services Expert Advisory Panel report, I Want to Work: Employment Services 2020.
3.7
In response, the Department of Education, Skills and Employment
(the department) noted that although the bill would support introduction of the new model, it was 'by no means the entirety of the Australian government's response to the I Want to Work report'. The department also noted that the proposed timing of passage of the bill would reduce the administrative burden on job seekers who can and should be able to self‐manage their requirements and pathway to employment, particularly in the context of COVID-19. The current processes increase difficulty for job seekers, but exist in order to ensure compliance with current legislation.
3.8
More broadly, the Australian Government (the government) has noted the importance of encouraging job seekers into employment in the context of the recovery from COVID-19.
3.9
In addition to significant consultation on both the new model and the bill, the department also noted that key elements of the new model has been undergoing testing since 2018 and pointed to the 'wealth' of information in the public domain about the policy settings for the new model. The department also indicated its intention to 'continue to engage with users and stakeholders and settle micro policy ahead of implementation in July 2022'.
Comments on specific aspects of the bill
3.10
While stakeholder feedback addressed various aspects of the bill, most of the commentary centred on the following aspects:
streamlined participation requirements (Schedule 1);
online employment service provision (Schedule 1);
the application of Commonwealth laws to employment program participants and the ability for the Employment Secretary to determine relevant employment programs (Schedule 6); and
alignment of commencement dates for job seekers referred to online employment services and those managed by a provider (Schedule 8).
Streamlined participation requirements
3.11
The bill would streamline and reduce the complexity of the social security law, removing around 130 pages of unnecessary legislation.
3.12
While there was support for the objective of simplifying participation requirements, a number of submitters expressed concern this could lead to a loss of existing protections for job seekers. For example, while noting the intent to consolidate the social security law, Anglicare Australia cautioned:
…it is not clear whether this will also result in the removal of protections. For example, the new bill removes all reference to activity tests. It consolidates references to employment pathway plans. It repeals entire sections of the previous Act. …Anglicare Australia calls on the committee to avoid any consolidation that removes protections for payment recipients.
3.13
Some stakeholders were concerned that the bill would remove the limit of 15 hours a week of employment that principal carers are required to undertake as part of their employment pathway plans. However, the bill specifies that principal carers and those with partial capacity to work would be exempt from satisfying employment pathway plans for a two-week period if they were engaged in paid work for at least 30 hours during that period.
3.14
Similarly, the Australian Council of Social Service raised concerns that protections would be removed for vulnerable job seekers:
In particular, we are concerned that Schedule 1 removes some protections for vulnerable people, and leaves time periods for exemptions from activity requirements for reasons such as domestic violence to the Secretary's discretion.
3.15
However, not all stakeholders shared ACOSS' concerns about the removal of maximum time limits for exemptions from mutual obligation requirements. For example, while noting that adequate protections would be required to ensure shorter exemptions did not become the norm, the Antipoverty Centre supported their removal:
Removing these maximums is good. In theory, providing more discretion regarding exemption periods should allow more reasonable lengths of time for people who have chronic and permanent health conditions to have relief from participation requirements.
3.16
In response to these concerns, the department noted that, with the exception of Schedule 8, the bill would not change existing policy and would retain existing rules and protections within the consolidated provisions.
3.17
Some participants raised concerns that the streamlined provisions would increase the discretionary power of the Employment Secretary and employment service providers, particularly in relation to assigning activity requirements in employment pathway plans. Anglicare Australia argued this would be likely to lead to fewer protections for job seekers and greater confusion about their rights within the system.
3.18
However, this argument was refuted by the department, which stated that the bill would not provide significant additional discretion to the Employment Secretary, the department, or employment services providers:
Existing provisions have been replicated in relation to job plan requirements and protections. …Job seekers will continue to be treated as they currently are when meeting requirements.
Online employment service provision
3.19
The bill would allow current and future job seekers to self‐manage their requirements, and support implementation of the new model, including improved digital servicing capacities for job seekers. As noted by the department, this amendment would:
…make much-needed changes that would reduce the administrative burden for the hundreds of thousands of job seekers currently in online employment services who are job ready and who can and should be allowed to manage their own requirements online.
3.20
The department also noted significant expansion of online employment services provision in the context of COVID-19, and that a significant proportion of job seekers are now serviced online. The department explained that for some job seekers, digital services would be easier to use and more accessible than current face-to-face provision. This was recognised by The Foundation for Young Australians and the Tomorrow Movement, which described the potential benefits for young job seekers:
Young people will benefit from online systems that work to reduce travel time and reduce in person appointments, particularly some young people with limited access to transport, in regional areas, and some people with disability.
3.21
Similarly, despite raising some concerns, Dr Peter Davidson, Principal Adviser, ACOSS, also acknowledged the potential benefits of a move to online services for some job seekers:
Many people find it easier to engage with the system online rather than having to front up at appointments with providers who often aren't much help to them at all.
3.22
The concerns raised by stakeholders related chiefly to:
the evidence supporting the move to digital service provision;
the appropriateness of digital servicing for some job seekers; and
the safeguards in place to support online job seekers.
Evidence supporting the move to digital service provision
3.23
While the specifics of digital servicing policies are outside of the scope of the bill, some stakeholders queried whether there was sufficient evidence to support the proposed move to digital service provision. However, significant policy detail on the new employment services model and the evidence from the online employment services trial are available from the department's website. In addition, the policy settings of the new model were informed by the Employment Services Expert Advisory Panel report, I Want to Work: Employment Services 2020.
3.24
Concerns raised by stakeholders included cautions against relying on the results of the expanded Online Employment Services (OES) initiative, which involved an atypical profile of job seekers—that is, those who lost employment due to the COVID-19 pandemic but were then able to be reabsorbed into the workforce.
3.25
However, the summary of the Online Employment Services Trial (OEST) evaluation notes that the OEST—which informed the rollout of digital services in the OES and the New Employment Services Trial—was conducted during the 'relatively strong labour market conditions prior to COVID-19'. This trial found that online servicing was 'efficient and effective in delivering employment services to the most job-ready participants' and that 'the majority of job seekers who participated in the trial were satisfied with online servicing and the jobactive website'.
3.26
This was also reflected in evidence provided by Ms Annette Gill, Principal Policy Adviser, NESA. Ms Gill stated that while more work was needed prior to implementation to ensure disadvantaged job seekers wouldn't fall through the cracks, there was positive feedback on elements of the online system:
There are some elements of the online employment services that we get good feedback from. We know that some of the job seekers from the trial sites who were referred online from face to face are still getting some contact and some support from providers, even though they are in online employment services. By and large, the job seekers seem to have adjusted.
The appropriateness of digital servicing for job seekers
3.27
A number of stakeholders expressed concern about people being moved onto digital services inappropriately. This included concerns about the process used to assess 'job-readiness', as well as job seekers not disclosing barriers that would prevent them using online services effectively. However, these specific policies and proposed processes are outside of the scope of the bill.
3.28
Ms Catherine Scarth, Chief Executive Officer, AMES Australia, indicated this could be a particular issue for migrant and refugee job seekers:
…sometimes people are reluctant to disclose everything that is happening to them. This is particularly so in the cultures that we work with. People are very keen to put their best foot forward, not realising that actually they might need more support. Our team spend a significant amount of time getting job seekers reassessed when they are inappropriately put into stream A, for instance, where they really need more support than that.
3.29
In response to these concerns, the department explained that it was making enhancements to its Job Seeker Classification Instrument (JSCI), which is used to decide whether a job seeker should be invited to complete a digital assessment. The digital assessment results then determine whether a job seeker is suitable for online services or whether they should receive assistance from an employment provider.
3.30
The department told the committee that, in some circumstances, job seekers are also asked to participate in an interview with Services Australia. This process helps identify potential vulnerabilities that can result in a job seeker requiring an exemption from certain requirements or having a reduced capacity to work. However, the department noted that the assessment process would not be a one-size-fits-all approach and that work to refine the assessment tools was ongoing:
…we can still have people in our online employment services system who may have a partial capacity to work but can actually self-manage and would be suitable for digital servicing. So we don't arbitrarily exclude those individuals from our digital case load. Using these longstanding instruments …we are making refinements to some of the assessment tools. We're still testing those, and we'll continue to make refinements in the lead up to the new model in July next year.
3.31
The department did not agree with suggestions that job seekers were routinely not disclosing barriers that would make them unsuitable candidates for digital servicing. It highlighted the results of its trial of the online JSCI, which found that job seekers who were comfortable completing the online JSCI tended to replicate their score when the process was repeated in an interview with researchers, providing confidence in the online assessment. The trial also provided the department with useful data on the profile of job seekers who were not comfortable with the online process:
…there are some people who didn't feel comfortable to complete it online, so it also gave us some really rich evidence of what those people looked like and what their barriers were. They certainly are the sorts of barriers that you'd expect for people from non-English speaking backgrounds, for people with perhaps with lower levels of education, so that's really influencing the way that we continue to design these assessment tools … so that people who actually need the help of a person … are more likely to be streamed in that way.
Safeguards to support online job seekers
3.32
Some participants warned of potential risks to digitising employment services—including via expanded automatic decision-making—and called for safeguards to be included in the bill. For example, Dr Peter Davidson, Principal Adviser, ACOSS, argued that:
Since the bill facilitates digital servicing …especially in regard to job plans, this is the time to embed protections against any adverse impacts of digital servicing and automated decision-making into social security law.
3.33
In response, the department highlighted the range of safeguards that would be in place to ensure that job seekers are receiving the right support. As set out in the Explanatory Memorandum, these safeguards involve human oversight as an integral part of the new model. A central feature of the safeguards would be the ability for job seekers to contact the Digital Services Contact Centre at any stage for advice or assistance. The department highlighted the responsiveness of the Digital Services Contact Centre—with calls currently answered in an average time of 17 seconds—as well as the depth of support it can provide online job seekers via both inbound and outbound calls:
It's not just a transactional call. It goes through making sure that they clearly understand their requirements, checking in on the different stages on their motivation, their resilience, what kind of jobs they might be looking for, trying to help them with the online tools that are available. It is quite a fulsome service for those job seekers to be able to reach out and talk to those contact centre consultants.
3.34
The bill would also provide that all job seekers are given the option to opt out of digital servicing at any point and must be given the option of entering into employment pathway plans with a human delegate. In addition, job seekers who are unhappy with their online plan, if they choose to enter it in that way, would have the option to either vary it themselves, or with the assistance of a human delegate at any time. Job seekers would also have the right to a review of their plan by the Digital Services Contact Centre, an authorised review officer, the Administrative Appeals Tribunal, or a court.
3.35
In relation to the potential for the bill to expand automated decision-making, the department was unequivocal in its response that the bill 'does not enable automated decision-making':
The reason we say there's no automated decision-making in the bill is that the idea is that job plans are either self-managed by the job seeker or made with a provider. The enabling of best use of technology is for self-managing by a job seeker. …it's about their own choice and control over their job plan content. We've built a safeguard into the legislation to say that job seekers will always have the option to make a job plan with a human delegate. The bill does not enable automated decision-making…
Employment programs and workplace protections for job seekers
3.36
Some stakeholders argued that the proposed changes in Schedule 6 could broaden the application of existing provisions which deny workplace rights to job seekers while working or undertaking work-like activities, with reduced or minimal parliamentary oversight. For example, the ACTU argued:
We are concerned that this Schedule further codifies a loss of rights for unemployed Australians when they are engaged in work as part of their unemployment mutual obligation requirements. It is also concerning that this Schedule appears to facilitate the creation of programs which involve this loss of rights with greater ease and with a low level of parliamentary oversight.
3.37
However, at the hearing the department sought to assure the committee that the proposed changes to consolidate existing provisions would:
…not broaden the application of existing provisions, which specify that job seekers who undertake work experience activities as part of meeting their requirements are not to be treated as employees under industrial relations legislation. Job seekers will continue to be treated as they currently are when meeting requirements.
3.38
Providers and host organisations will also still have a legal requirement to ensure the workplace, and the activity being carried out, meet all work health and safety obligations under relevant legislation and program requirements. They must also maintain insurances as outlined in their relevant Deed and understand the coverage available to them under their own insurance policies.
3.39
In addition, even without these provisions, it would generally be unlikely that a person engaged in unpaid activities could be considered a worker or employee for the purposes of those laws, but these provisions clearly specify this.
Alignment of payment commencement dates
3.40
Many stakeholders raised concerns in relation to the requirements in Schedule 8 of the bill that would align the start date of recipients referred to online employment services, with those referred to a provider. In particular, there were concerns that the requirement for online job seekers to enter into a jobs plan before receiving their first payment could pressure people into agreeing to plans that were not appropriate to their individual requirements in order to receive the payment.
3.41
ACOSS argued in its submission that:
If implemented, these provisions would force people to enter into job plans hastily, and to agree with options presented to them, contrary to the Expert Advisory Panel's vision of a digital service that increases agency and choice.
In contrast to the view presented in the Explanatory Memorandum, ACOSS believes that this change treats people in digital services inequitably compared to those receiving face-to-face services. Since people's payments are delayed, which raises potential human rights issues.
3.42
Similarly, Ms Sally Sinclair, Chief Executive Officer, NESA, told the committee:
Currently, job seekers engaged in face-to-face service have the right to be informed of and accept a period of up to 48-hours think time to consider their job plan before accepting it, without impact to their start date. Under the proposed arrangements, job seekers in online services would experience a change in their payment start date if they took time to consider the appropriateness of their job plan before accepting it. We think this is a provision that potentially creates inequity.
3.43
In response to these concerns, the department indicated that online job seekers had the option of altering their employment pathway plan should it no longer be suitable. The department also gave evidence that job seekers are not bound by their initial plan, and have the option to vary it at any time.
Ms Carmel O'Regan, Assistant Secretary, Labour Market Policy Branch, argued that while job seekers would have to agree to an employment pathway plan 'they could change it the next day, and the next day. So it's not really locking them in'. Ms O'Regan also clarified that job seekers are already required to enter an employment pathway plan before their payment is made—the difference from implementing this measure is to remedy a current inequity for those who are serviced by a provider.
3.44
The department also noted that job seekers who have been referred to an online employment service could still access a traditional employment services provider at any time:
If a job seeker has been identified as appropriate for digital services but for whatever reason that job seeker wants to be serviced by a provider, they can be opted out, or moved to a provider, at any point and that job seeker can do that through their online dashboard that they have now, or they can call the digital services contact centre, who will then facilitate the transfer to the employment services provider.
3.45
The measure would also address an inequity that currently exists whereby the start date for job seekers’ income support payments depends on whether they are referred to online employment services or referred to an employment services provider.
3.46
The department also noted that there is extensive evidence on the importance of active job search early in a job seeker’s period of unemployment.
Committee view
3.47
The committee would like to thank stakeholders for their engagement in this inquiry process, as well as the lengthy consultation and trial processes that have underpinned development of the New Employment Services Model (the new model).
3.48
While noting the concerns of stakeholders about the length of time available for consultation on the bill, the committee does not believe additional time is warranted in this case. Development of the new model, which this bill supports, has already involved extensive consultation with stakeholders. In addition, elements of the new model have been trialled with job seekers and employment service providers since 2018. The committee accepts the department's assurances that it will continue to engage with stakeholders to settle micro-policy issues ahead of implementation in July 2022. Further, the committee welcomes the department's commitment to respond flexibly to stakeholder feedback and lessons learned as implementation progresses.
3.49
The committee also heard concerns that the bill only goes part way to implementing the recommendations of the Employment Services Expert Advisory Panel report, I Want to Work: Employment Services 2020. The committee notes the department's response that the bill does not represent the entirety of the government's response. The committee would encourage the department to keep stakeholders informed of progress in implementing other recommendations from that report.
3.50
The committee was encouraged by stakeholder support for the bill's intent to streamline the social security law. However, it is also mindful of some participants' concerns that this could result in a loss of existing protections for job seekers and provide additional discretionary power to decision-makers. Based on the evidence provided by the department, the committee is persuaded that this is not the case. Specifically, the committee understands that the existing rules and protections for job seekers will be retained within the consolidated provisions and that the bill will not provide significant additional discretion to the Employment Secretary, the department, or employment service providers. The committee understands that the department has already briefed a range of stakeholders on the bill and how existing protections would be maintained. It is also willing to brief other organisations on request.
3.51
Stakeholders voiced strong concerns about the move to expand digital service provision under the new model. Many of these concerns related to fears that job seekers would be forced into digital servicing in inappropriate circumstances and that there were insufficient protections in place to protect online job seekers. While acknowledging these concerns, the committee considers the department's ongoing work will enable it to refine the assessment process to ensure people are streamed appropriately into either digital or provider supported services. Further, the committee heard evidence that job seekers must be given the option of entering into employment pathway plans with human delegates, or being referred to a provider at any time.
3.52
The committee is also cognisant of concerns raised by stakeholders in relation to the alignment of the start date for payments received by job seekers referred to online employment services, with those referred to an employment provider. However, the committee notes that the intent of this measure is to address a current inequity and drive a behavioural change to encourage online job seekers to connect quickly to employment services, increasing their likelihood of finding work. The committee also reiterates the department's evidence that early activation of employment plans is effective and that job seekers referred to an online employment service will be able to vary their employment pathway plan, opt out, or move to a provider at any point.
3.53
On balance, the committee is satisfied that there are sufficient safeguards in place to assist online job seekers under the new model. These include the Digital Services Contact Centre, the ability to switch to an employment services provider at any time, and the right to a review of online employment pathway plans. In this context, the committee would encourage the department to ensure all job seekers are aware of these safeguards as the new model is rolled out.
3.54
Overall, the committee believes the bill will serve to modernise and streamline the social security law, reducing its complexity and enabling better understanding and administration of its requirements. Critically, the bill will support implementation of the New Employment Services Model. In turn, this will provide the most job-ready job seekers with greater agency to decide their own pathway to employment, while also allowing employment service providers to provide more intensive and tailored support to those who need it. Accordingly, the committee recommends the bill be passed.
3.55
The committee recommends that the bill be passed.
Senator the Hon James McGrath
Chair