LABOR SENATORS' DISSENTING REPORT
Key issues
1.1
This Social Security Legislation Amendment (Further Strengthening Job
Seeker Compliance) Bill 2015 seeks to amend the Social Security
(Administration) Act 1999 to support measures announced in the 2015-16 Abbott
Coalition Budget, which increase the immediate consequences for job seekers who
do not meet their mutual obligation requirements.
1.2
With Labor's support, the Social Security Legislation Amendment
(Stronger Penalties for Serious Failures) Bill 2014, legislated the 'no show no
pay' principle to provide a stronger incentive for job seekers to attend their
appointments. Labor did so only on the basis that we were able to protect the
right of job seekers to review decisions in which payments are suspended – a
right that the Government sought to remove. Labor sought to protect the rights
of job seekers to justify a reasonable excuse for breaches to their obligations
and ensured that no job seeker would have their payments stopped without first
being notified.
1.3
Labor also ensured that the Social Security (Reasonable Excuse –
Participation Payment Obligations) (Employment) Determination 2014 (No 1)
enacted by Labor whilst in Government remained the legislative instrument used
to decide whether an excuse is reasonable. The Government sought to push the
burden of this decision on to employment service providers.
1.4
Labor support aspects of the Bill, for example, when a job seeker fails
to undertake adequate job search efforts, a job seeker's payment may not be
payable until the job seeker demonstrates adequate job search efforts. Once
adequate job search efforts have been demonstrated, the job seeker would
receive full back pay. Currently, it can take at least fourteen weeks of
ongoing inadequate job search before a job seeker’s participation payment is
impacted in any way. Labor recognises that changes in this legislation would
provide a more immediate link for job seekers between the non-compliant action
and any penalty applied through an appropriate and fair process.
1.5
Notwithstanding, Labor senators do have specific concerns with the bill.
While certain aspects as supported by the Labor senators of the Committee, who
wish to ensure that job seekers' mutual obligations are met, we must support
vulnerable job seekers, not create legislative hurdles that increase the
difficulty of finding work.
The immediate imposition of penalties on jobseekers for failing to enter into
an Employment Pathway Plan
1.6
Currently, while job seekers may incur a connection failure if they do
not enter into an Employment Pathway Plan when first asked to do so, there is
currently no financial penalty imposed for an initial failure to enter into an
Employment Pathway Plan. A job seeker will however be required to attend a
second appointment to enter into an Employment Pathway Plan. If the job seeker
then attends but again fails to enter into an Employment Pathway Plan they may
receive a reconnection failure and their payment may be cancelled by the
Department of Human Services (DHS) until they do enter into an Employment
Pathway Plan. The Government is by measure of this legislation seeking to
impose a penalty on job seekers immediately for a failure to enter into an
Employment Pathway Plan.
1.7
Labor senators believe this goes directly against the aim to find
jobseekers work, and fails to promote proper engagement with a job seeker, by
failing to allow them to review and consider their obligations under an
Employment Pathway Plan before immediately agreeing to one. This could unduly
influence a job seeker to agree to an Employment Pathway Plan that they do not
understand or fully agree with.
1.8
Whilst Labor senators accept the Chair's indication that job seekers who
do not wish to accept a plan immediately will continue to be allowed 48 hours
'think time' before any payment suspensions or financial penalties are
submitted, we do not agree that view that the 48 hours think time is a
reasonable timeframe to allow a job seeker to reflect and seek assistance to
determine the appropriateness of their Employment Pathway Plan to their
personal needs.
Lack of clarity around the financial impacts of the legislation
1.9
At the hearing held by the Committee on 13 of November 2015, the
Department provided no evidence of how many job seekers are incurring a
connection failure due to a failure to enter into a new or altered Employment
Pathway Plan, without a reasonable excuse, and therefore are unable to
accurately outline how many job seekers would be without payments. This speaks
directly to the accuracy (or otherwise) of the projected savings outlined by
the budget measure.
Use of the term 'inappropriate behaviour'
1.10
The Minister has asserted that some job seekers are treating service
providers with contempt by not behaving appropriately at relevant appointments.
Labor senators are yet to be provided with adequate evidence of such behaviour,
or how widespread such behaviour is. This claim is supported by the
Parliamentary Human Rights Committee, who reported on the predecessor to this
bill, the Social Security Legislation Amendment (Further Strengthening Job
Seeker Compliance) Bill 2015.
1.11
Further to this, there appears to be no legislative definition of 'inappropriate
behaviour' and no guidance as to how it should be judged. The only test is that
the Secretary is satisfied, that a job seeker acted in an inappropriate manner
such that the purpose of the appointment was not achieved. There also appears
to be no guidance as to who determines what the purpose of an appointment is.
The Secretary would be making such judgements on the basis on third-hand and
subjective evidence that has been provided by an employment service provider to
Centrelink, therefore, it appears to be a strong capacity for vulnerable job
seekers to be unfairly penalised based on subjective analysis.
1.12
National Welfare Rights provided an example in their submission
outlining where such a decision could result in an inappropriate assessment:
Jenny worked in a call centre for 15 years before being made
redundant. She is the principal carer for her aging parents and has been
struggling financially since she was laid off.... She has applied for dozens of
jobs, but hasn’t had any interviews. She is beginning to despair and finding it
hard to get out of bed in the morning and is faltering in her job search and
caring responsibilities. ... When she is at her employment services appointment,
her case manager queries why she hasn’t done all her 20 job searches this
fortnight and she loses her temper and tells the case manager she is an idiot
before leaving abruptly. The employment services provider is unaware of Jenny’s
caring responsibilities or any undiagnosed mental illness, and Jenny lacks
insight herself. Jenny incurs a penalty for 'inappropriate behaviour' which
adds to her financial hardship and worsens her mental state.[1]
1.13
Inappropriate behaviour is not defined in the bill and the bases for
assessment are not clear and likely to involve a high degree of judgement on
the part of the decision maker without clear statutory guidance. Moreover,
Labor senators express concerns that as with the predecessor to this bill, the
initial judgements will be made by a person who is not bound by the APS code of
conduct. Labor senators were not persuaded that appropriate safeguards in place
to allay the concerns of most submitters regarding the application of the
inappropriate behaviour provisions.
The effects on regional job seekers
1.14
In addition, some witnesses suggested the effects of the proposed
amendments on job seekers in regional areas may be disproportionately harsh
because of the lack of employment opportunities available in regional and
remote Australia, compared to other areas. Specifically, the arbitrary rules
determining the number of job searches required do not reflect the reality of
life in many small towns where there are far fewer businesses than in
metropolitan areas.
1.15
The Australian Unemployed Workers' Unions argued that with regards to
job search penalties, 'unemployed workers will be disproportionately affected'[2],
and went on to state:
by increasing the penalties surrounding insufficient job
searches I think that the government is making the system very inflexible, when
flexibility is definitely needed—especially for unemployed workers in regional
areas. You may be in a town where there are not even 20 businesses, so how are
you going to apply to 20 businesses per month—which is what you are required to
do currently under the mutual obligation guidelines—when there are not even 20
in your area?
As it stands at the moment with employment service providers,
you might get some lenient ones that would say, 'Oh well, it's unreasonable for
me to force you to look for 20 jobs when there just aren't 20 jobs around.' Or
you might get some other lenient one that would think, 'I'd prefer you to
concentrate on realistic job opportunities.' But I think this bill would
embolden employment service providers. And with regard to the management of a
lot of employment service providers, they will push their consultants to really
make an issue of Job Search and ensure that unemployed workers always look for
20 jobs per month—and if they do not, then Newstart will be cancelled. I think
that is a very concerning development.[3]
1.16
Jobs Australia echoed this concern:
we are worried about whether we are in a situation where
people are receiving adequate training so that they can exercise discretion so
that they do not do things like make people enter standard job plans; that they
are exercising reasonable judgements about what is a reasonable job search
activity—somebody who has been unemployed for five years and living in a
regional area who has applied for 1,000 jobs where 20 per month may be way too
many.[4]
1.17
Labor senators consider it unreasonable to suggest that people living in
regional and remote locations with severely limited job opportunities should be
penalised in such an arbitrary manner. Further, Labor senators are extremely
concerned about the unnecessary additional hardship that is likely to be
inflicted - via penalties such as the eight week non-payment period - on
already vulnerable job seekers who will simply be unable to meet job search
requirements because of their location.
Introduction of an eight week non-payment penalty period
1.18
When a job seeker refuses or fails to accept an offer of suitable
employment, and has no reasonable excuse for the failure, a job seeker would no
longer be able to seek to have the existing eight week penalty period ended by
agreeing to undertake additional activities. The government believes that this
change would only affect those job seekers who have shown they can obtain
suitable employment but are simply choosing not to work. The Government has
already sought to make these changes through the Social Security Legislation
Amendment (Stronger Penalties for Serious Failures) Bill 2014, which Labor opposed,
and continues to oppose.
1.19
Labor senators have seen no overwhelming evidence to suggest forcing job
seekers to serve the eight week non-payment penalty period regardless of the
reasons leading to the refusal of the work, beyond a reasonable excuse would
yield positive outcomes. This claim is supported by the Parliamentary Joint
Committee on Human Rights[5].
This change to the Act does not allow for the consideration that proposed work
may not be suitable, that the longevity of the employment or its future
prospects and opportunities may undermine genuine future job opportunities or
that the type of work might prevent more suitable work in the future. Many
submitters, including ACOSS, Australian Unemployed Workers' Union (AUWU), the
St Vincent de Paul Society and the National Welfare Rights network expressed
similar concern over the non-payment penalty period in their submissions.
1.20
The measures also appear unnecessary when consideration is given to the
fact that of 18,125 'serious non-compliance' penalties applied in 2014/2015
financial year, only 699 were for refusing a suitable job offer.
1.21
The changes outlined this bill would also remove the ability of the
provider to waive the penalty despite evidence that serving the penalty would cause
financial hardship. Labor senators would therefore suggest that pushing a job
seeker into financial hardship, leading to a host of consequences such as
poverty and homelessness, would fail to meet the Turnbull Government's test of
protecting vulnerable people. St Vincent De Paul, in their submission to the
Committee, argue that 'there is no question that this will absolutely devastate
people's ability to survive'.[6]
Labor senators agree.
Recommendation 1
1.22
Labor senators of the Committee recommend that the bill be amended to
address these concerns.
Senator Sue Lines
Deputy Chair
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