Activity tests, participation requirements and Employment Pathway Plans

7.84 To qualify—and remain qualified—for certain social security payments, a person must satisfy an activity test or participation requirements.

7.85 Job seekers receiving Newstart Allowance, Youth Allowance, Special Benefit and Parenting Payment have an activity test or participation requirements.^[67] The activity test is designed to ensure that unemployed people receiving income support payments are ‘actively looking for work and/or doing everything that they can to become ready for work in the future’.^[68] Participation requirements ‘aim to ensure that a person looks for, and undertakes, ‘paid work in line with their work capacity’ in order ‘to increase work force participation … and reduce welfare dependency’.^[69]

7.86 Generally, job seekers must be ‘actively seeking and willing to undertake any paid work that is not unsuitable’.^[70] This usually requires job search, paid or voluntary work, study or other activities.

7.87 An activity test or participation requirement may include: a specified number of job searches; accepting all suitable work offers; attending all job interviews; attending interviews with Centrelink and a person’s Job Services Australia (JSA) provider; attending training courses; never leave a job, training course or program without a valid reason; and entering into and complying with the terms of an Employment Pathway Plan (EPP).^[71] Job seekers may also have a specific work experience activity requirement, and may be required to undertake a work experience activity tailored to the needs of the individual job seekers.^[72] Other activities may include an approved program of work for unemployment payment (Work for the Dole), or courses or programs designed to help job seekers to look for and obtain work, such as vocational training or work experience.^[73] Job seekers may also suggest activities themselves but they must be consistent with legislation and policy.^[74]

7.88 When a person registers with Centrelink as an unemployed job seeker, they will be required to register with a JSA provider of their choice unless it is determined that these services are not the most appropriate form of assistance for them.^[75] Those claiming Newstart Allowance or Youth Allowance, are required to attend an interview with their JSA provider within two working days of initial contact—called ‘RapidConnect’.^[76] If a job seeker is required to register with a JSA provider, they must remain connected with the provider as part of the job seeker’s requirement to look for work.^[77]

7.89 A person who does not meet their activity test or participation requirements may result in a ‘failure’ which may affect their social security payments. Failures are discussed below.

7.90 Different requirements may apply for job seekers who have a partial capacity to work, early school leavers, those who are principal carers, and those aged 55 or over.^[78]

Partial capacity to work

7.91 Most job seekers with a partial capacity to work^[79] will be required to satisfy the activity test by undertaking suitable work of 15 hours a week or, alternatively, by looking for work or by engaging in a suitable program of assistance recommended by an Employment Services Assessment (ESAt) or Job Capacity Assessment (JCA).^[80]

7.92 However, some job seekers with a temporarily reduced, or partial, capacity to work will be able to satisfy the activity test by attending a quarterly interview with Centrelink and not be required to work, look for work, or engage in any suitable program of assistance recommended by the ESAt or JCA.^[81]

7.93 Quarterly interviews aim to keep people who are unable to work due to illness, injury or disability, connected to the labour market by informing them about the benefits of work and services available to help them to find work.^[82]

Determining capacity to work

7.94 Several tools and processes are in place to determine a person’s capacity to work or barriers to work and to recommend the content of a person’s activity test or participation requirements. These include the Job Seeker Classification Instrument (JSCI); referrals to an Employment Services Assessment (ESAt) or Job Capacity Assessment (JCA), and Comprehensive Compliance Assessments (CCA).

Job search

7.95 Job search activities will be the primary activity for most job seekers. Both Centrelink and JSA providers have a role in setting a reasonable number of job search contacts for job seekers.^[83] The number of job contacts required by a job seeker is reviewed when the job seeker makes Centrelink aware of major changes in their personal circumstances. The Guide to Social Security Law provides that factors to be considered in varying a job seeker’s search requirements include ‘domestic violence or family breakdown’.^[84]

7.96 Job seekers must provide information about their job search efforts to obtain work. Centrelink uses tools such as the application for payment form; job seeker diaries and employer contact certificates to monitor job search effort.

Job Seeker Classification Instrument

7.97 A JSCI is used by Centrelink at first contact when a job seeker registers for activity tested income support. A JSCI is used to determine a job seeker’s relative level of disadvantage in the labour market, and therefore, their likely difficulty in obtaining employment.

7.98 The content of the JSCI is discussed in detail in Chapter 15, however, as the JSCI is often administered by Centrelink, its administration by Centrelink is considered in this chapter. In some instances JSA providers may administer the JSCI, where a job seeker registers directly with the provider or as part of a change of circumstances reassessment. Administration by JSA providers is considered in Chapter 15. Chapter 15 also discusses the manner in which a JSCI is administered, for example, in person or by telephone interview.

Employment Services Assessments and Job Capacity Assessments

7.99 An ESAt or JCA is used to, among other things, determine a person’s capacity to work and identify barriers to employment.^[85] The assessment also informs the kinds of activities that a person will be required to undertake to improve their capacity to meet activity test requirements^[86] and, in some circumstances, whether a person may be eligible for an exemption.^[87] The ESAt and JCA process and the determination of a person’s capacity to work and barriers to employment are discussed in detail in Chapter 15. The referral process by Centrelink and the recommendations from an ESAt or JCA about access to services and measures which may assist the job seeker, such as variations to a person’s EPP are considered in this chapter.

Referral by Centrelink

7.100 A job seeker may be referred for an ESAt or JCA in a number of circumstances, including where a person:

• is applying for Disability Support Pension or having a medical review of Disability Support Pension;
• is in receipt of Newstart Allowance or Youth Allowance and applying for an activity test exemption;
• registers directly with a job services provider; or
• informs Centrelink or their job services provider of a significant change in their circumstances that affects their work capacity and/or employment assistance needs.^[88]

7.101 Referral to an ESAt or JCA may also occur as a result of the administration of the JSCI. This referral process is considered in detail in Chapter 15.

7.102 Centrelink has primary responsibility for identifying and actioning referrals for an ESAt or JCA.

Outcomes

7.103 ESAt and JCA assessors may make a range of recommendations about access to services and measures which may assist the job seeker. In addition to referrals to JSA and Disability Employment Services (discussed in Chapter 15), other possible interventions that may be recommended include education or training and personal counselling and referral to community services.^[89] An ESAt or JCA will also identify unsuitable activities for a job seeker, such as where work may aggravate a pre-existing illness.^[90]

Comprehensive Compliance Assessment

7.104 If a job seeker is having difficulty meeting their activity test or participation requirements, Centrelink will use a Comprehensive Compliance Assessment (CCA) to determine the reasons why. A CCA will be automatically triggered after a job seeker has had three ‘Connection’ or ‘Reconnection Failures’, or three ‘No Show No Pay Failures’ in a six month period. Job services providers or Centrelink may also initiate a CCA at any other time they believe a job seeker’s circumstances warrant it.^[91]

7.105 During a CCA, a Centrelink specialist officer considers the job seeker’s compliance history and looks at why the job seeker has been failing to meet their requirements. In addition to determining whether a job seeker has been persistently non-compliant, the CCA also acts to identify whether the job seeker:

• has any barriers to participation or employment;
• has been given appropriate activity test or participation requirements; and/or
• would benefit from additional or alternative assistance.^[92]

7.106 Possible outcomes from a CCA include: referral to an ESAt or JCA for further assessment; referral to DES; referral to another JSA service stream (discussed in Chapter 15); a recommendation that the activities or requirements in the job seeker’s EPP be amended; referral to a social worker to assist the job seeker with their personal circumstance; no action where there is reasonable explanation for the past failures and/or recent compliance record is good; or application of a ‘Serious Failure’.

7.107 The findings of a CCA are also used to inform future decisions about the job seeker’s requirements.

Employment Pathway Plans

7.108 All activities and participation requirements are contained in an EPP.^[93] An EPP is an individual agreement negotiated between a customer and their job services provider or Centrelink. Any activity in an EPP must improve the person’s skills and experience and therefore their prospects of obtaining suitable paid work, assist the person in seeking suitable work, and if the job seeker is an early school leaver, be educative or training exclusive.^[94]

7.109 Employees of job services providers (including JSA and Disability Employment Services (DES)) and Centrelink have delegated powers to require a job seeker to enter into or vary an EPP; approve the terms of an EPP; and suspend or cancel an EPP.^[95]

Tailoring an EPP

7.110 The content of an EPP varies for different payments.^[96] An EPP must meet, and be tailored to, the needs of an individual job seeker and not place unreasonable demands on a job seeker, having regard to their personal circumstances.^[97] If a person has a limited capacity to meet an activity test or participation requirement, then a tailored EPP should be prepared taking into account any specific needs of the job seeker, such as family and caring responsibilities and health requirements.^[98]

7.111 The Guide to Social Security Law provides that in setting the terms of a person’s EPP, Centrelink or a JSA provider must take into consideration:

• the person’s education, experience, skills, age, physical condition and health (including mental health);
• the state of the labour market,
• the availability of places in appropriate courses of education or training,
• transport options available where the person lives,
• the family and caring responsibilities of the person,
• the financial costs of compliance with the terms of the EPP,
• the person’s accommodation situation, and
• any other relevant circumstances that may affect a person’s ability to participate and comply.^[99]

7.112 For job seekers who have been assessed as having a partial capacity to work, the activities recommended by an ESAt or JCA are considered to be the most suitable for inclusion in a person’s EPP.^[100]

7.113 Exemptions are available in certain circumstances—discussed below—however the Guide to Social Security Law states that it is preferable to reduce a person’s activity or participation requirements rather than to apply an exemption from an activity test, participation requirement or EPP.^[101]

Exemptions

7.114 A victim of family violence may be relieved from an activity test, participation requirement, or the requirement to enter into an EPP, or may have their EPP suspended in three circumstances, where:

• a person is a principal carer of one or more children and is subjected to ‘domestic violence’ in the 26 weeks prior to making the exemption determination;^[102]
• a person is a principal carer of one or more children and there are ‘special circumstances’ relating to the person’s family that make it appropriate to make the determination;^[103] or
• there are ‘special circumstances’ beyond the person’s control and it would be unreasonable to expect compliance.^[104]

7.115 The Guide to Social Security Law provides that special circumstances in relation to exemptions from activity tests and participation requirements include when ‘a person has been subjected to domestic violence’, and:

• ‘the domestic violence specifically affects capacity to both look for work and participation in training activities’;^[105] or
• where it is unforeseen (or unavoidable) and causes major disruption and would be unreasonable to expect the person to comply with the relevant activity test or participation requirement.^[106]

7.116 The maximum length of an exemption available to victims of family violence who are principal carers is 16 weeks. For victims of family violence who are not principal carers, the maximum exemption that can be granted is 13 weeks. While exemptions are limited to a maximum of 13 or 16 weeks, a person who is on an exemption may reapply for another exemption.^[107] Those who are provided an exemption are also exempt from RapidConnect provisions.^[108]

7.117 In determining whether a person is eligible for an exemption under these grounds, primary regard is to be given to a Centrelink social worker’s assessment.^[109]

7.118 In 2008, a Participation Review Taskforce (the Taskforce) examined the rules for parents and mature-age job seekers with a view to increasing flexibility within the social security system and enabling greater workforce participation. In relation to the exemptions from activity tests, participation requirements and EPPs in circumstances of family violence, the Taskforce recommended that the 16 week exemption for principal carers be replaced with a 12 month exemption to ‘recognise the time needed to restore victims of family violence and to support victims to seek services’.^[110] The Taskforce recommended that this exemption be available in ‘cases where the parent is accessing services due to a domestic violence situation’ such as counselling or emergency accommodation.^[111] The Taskforce recommended that the existing 13 week ‘special circumstances’ case-by-case exemption would remain available in other circumstances.^[112]

Submissions and consultations

7.119 In the Social Security Issues Paper, the ALRC asked what measures, if any, might be taken to address any difficulties faced by victims of family violence in complying with activity tests, participation requirements and EPPs. In particular, the ALRC asked whether the current exemption periods were reasonable for victims of family violence.^[113]Family Violence and Commonwealth Laws—Employment and Superannuation Law (Employment Law Issues Paper), also asked a number of questions in relation to the administration of the JSCI and the JCA referral process.^[114]

7.120 In response, stakeholders raised concerns about the administration of the JSCI and referrals to JCAs, the flexibility of EPPs in reflecting the needs of victims of family violence, awareness of exemptions and extensions to exemptions, accessibility of exemptions, and the adequacy of the length of exemptions. These concerns are discussed in turn below.

Job Seeker Classification Instrument

7.121 WEAVE submitted that, in administering the JSCI,

staff routinely skip questions bundling several questions into one generic question such as ‘Is there anything else you’d like to tell us about’, ‘are there any other issues that impact on your ability to undertake employment?’ For many women, these questions are not sufficiently specific for them to disclose the existence of domestic violence and they will routinely answer no, having no understanding that such issues could be considered.^[115]

7.122 Many stakeholders emphasised the need for training of Centrelink staff in administering the JSCI.^[116]

7.123 WEAVE commented broadly about the purpose of referral to a JCA, suggesting it should ‘form part of an informed consultation with the victim about their options—they may prefer to seek a Domestic Violence or Special Circumstances exemption, or be assessed for work capacity’.^[117]

Flexibility in tailoring an individual’s Employment Pathway Plan

7.124 The Welfare Rights Centre NSW submitted that often,

employment pathway plans (EPPs) are ‘off the shelf’ plans which are not individually tailored to a particular person’s circumstance … there is a lack of genuine negotiation when between the employment services provider and the jobseeker on the terms of an EPP.^[118]

Awareness of exemptions and extensions

7.125 Some stakeholders noted a lack of awareness about available exemptions and extensions^[119] amongst social security recipients, Centrelink^[120] and JSA staff.^[121]

7.126 In the ADFVC’s study, Seeking Security,

Women were worried about their ability to comply with activity and participation requirements, given their childcare responsibilities and a lack of affordable childcare options. Some women were not emotionally ready to return to work. Others had ongoing legal, medical and other time commitments that would make finding work difficult. It was also concerning that few women in the financial security study were aware of the exemption from activity and participation tests.^[122]

7.127 WEAVE submitted that customers ‘are not routinely advised of the availability of domestic violence exemptions from jobseeker participation requirements’.^[123] WEAVE also stated that there is a ‘sceptical attitude amongst Cetnrelink staff to domestic violence, and a belief that jobseekers routinely try to get out of their obligations any way they can. The lack of information about the existence of a Domestic Violence exemption is the fear that it would provide a ‘perverse incentive’ to jobseekers victims to claim Domestic Violence exemptions to try to avoid their obligations’.^[124]

7.128 In addition, the ADFVC noted that generally, JSA members are ‘poorly informed about exemptions, processes and appropriate supports and levels of assistance’.^[125]

7.129 Stakeholders therefore recommended training for Centrelink and JSA staff and enhanced information provision to customers about exemptions and extensions.^[126]

Length and accessibility of exemptions

7.130 Some stakeholders suggested that the exemption period be extended to reflect more accurately the demands on people who are experiencing or leaving family violence.^[127] Some stakeholders noted anecdotally that exemptions are rarely granted for the full 16 weeks^[128] rather,

The normal period of exemptions, when these are granted, is one or two weeks which is not enough for the victim to recover from trauma and to support her children through their recovery and the change in family circumstances when the parents have separated.^[129]

7.131 Similarly, Myjenta Winter submitted that although principal carers can apply for an exemption under ‘special circumstances’, ‘these exemptions are usually only granted for 2 weeks if granted at all, the principal carer is then expected to go back to Centrelink and repeat the whole traumatic story again to another person to try and attain another 2 week exemption’.^[130]

7.132 The ADFVC recommended the exemption be extended to at least 6 months^[131] while others recommended a 12 month exemption in line with the recommendations of the Participation Review Taskforce.^[132]

7.133 On the other hand, the Welfare Rights Centre Inc Queensland commented that:

It is our understanding that the legislative exemptions for family violence with respect to activity requirements are quite adequate, but that Centrelink customers needed to be made aware of the availability of exemptions.^[133]

7.134 Myjenta Winter submitted that ‘[m]ostly principal carers are denied exemptions for caring for children who have experienced violence’^[134] and that ‘[t]he current exemptions do not acknowledge violence against children. Principal carers of children who have been abused are only eligible for a maximum 13 week special circumstances exemption’.^[135]

7.135 WEAVE stated that ‘Centrelink social workers advise women that they cannot renew such exemptions and that they have to refer to JCAs. JCAs in turn advise that they can’t recommend ongoing exemptions without medical evidence’.^[136]

ALRC’s views

7.136 A number of concerns were highlighted by stakeholders in relation to activity tests, participation requirements and EPPs. These related to ensuring that the circumstances of a victim of family violence were adequately taken into account in the administration of a JSCI, tailoring an EPP and in considering whether to grant an exemption. Concerns were also raised in relation to the length of exemptions available.

Job Seeker Classification Instrument

7.137 The administration and effectiveness of the JSCI is considered in detail in Chapter 15. However, Centrelink staff may not administer the JSCI appropriately—in particular, to identify victims of family violence. The ALRC therefore considers that it may be appropriate that training be provided to Centrelink staff in administering the JSCI.

Comprehensive Compliance Assessments

7.138 The ALRC did not seek specific information about CCAs in either the Social Security Issues Paper or the Employment Law Issues Paper. The ALRC therefore welcomes comment as to whether family violence is adequately considered by Centrelink specialist officers in conducting a CCA.

Job Capacity Assessment and Employment Services Assessment

7.139 The ALRC is also interested in comment on whether, in practice, family violence is considered in referring a job seeker to an ESAt or JCA assessor and whether recommendations made by ESAt or JCA assessors regarding the experiences of victims of family violence are taken into account by Centrelink. Whether family violence should be considered a ‘significant barrier to work’ is considered in Chapter 15.

Flexibility in tailoring an individual’s Employment Pathway Plan

7.140 The ALRC is concerned by stakeholder comment that EPPs are given to victims of family violence ‘off the shelf’ and do not adequately reflect the person’s individual circumstances. This may mean that victims of family violence find it difficult to meet their activity or participation requirements and consequently may be cut off from their social security payment.

7.141 In recognition of the theme of self-agency discussed in Chapter 2, a genuine conversation should take place between the job services provider and the customer to ensure that the content of an EPP connects the person with requisite services, training and work opportunities.

7.142 In particular, the Guide to Social Security Law does not expressly direct a Centrelink customer service adviser to consider family violence when tailoring a job seeker’s EPP. The ALRC therefore considers that the Guide to Social Security Law should expressly direct Centrelink customer service advisers to consider family violence when tailoring a job seeker’s EPP.

Accessibility of exemptions

7.143 Victims of family violence may not be aware of exemptions—and extensions to exemptions—from activity tests, participation requirements and EPPs. In addition, stakeholders raised concerns about the level of knowledge of Centrelink staff and JSA providers in relation to exemptions and extensions.

7.144 Accordingly, the ALRC proposes that information about exemptions and extensions should be included as part of the information provided to all customers as proposed in Proposal 4–8. This places the choice in the individual’s hands as to whether or not they wish to apply for an exemption or not. While some victims of family violence may need an exemption from activity tests and participation requirements, others may want to continue seeking work to increase their chances of returning to, or joining, the workforce.

7.145 In this context, it is important that the social security system does not presume a ‘one-size-fits-all’ response nor assume that the system knows what is best for an individual’s circumstances.

Length of exemption periods

7.146 Stakeholders raised concerns about the length of exemption periods available for victims of family violence and that the length of exemption did not reflect the nature of family violence. Some stakeholders recommended extending the exemption in all cases to six to 12 months.

7.147 An automatic exemption of six to 12 months may isolate a victim of family violence from services. Currently, the requirement for a person to apply for a renewal of an exemption means that a customer is re-engaging with the system and has opportunity to be referred to other support mechanisms.

7.148 There are several competing consequences. First, the ‘all-encompassing’ nature of family violence can mean that an appointment to reapply for an exemption may be too overwhelming. Similarly, if a victim of family violence is required to leave home in order to reapply for an exemption, this may subject the person to further risk of violence. On the other hand however, extending exemptions for too long may have unintended consequences effectively isolating the customer from any connection to services.

7.149 There are also different exemption periods that are available to principal carers than to other social security recipients. In order to ensure consistency and not to presume that family violence necessarily has a larger impact on a principal carer than those who are not, it may be necessary that the length of exemption available to all victims of family violence be the same—that is, 16 weeks.

7.150 The ALRC considers that DEEWR should review the length of, and accessibility of, exemption periods to ensure that they reflect the nature of family violence experienced by both principal carers and those who are not.

7.151 The ALRC is also interested to hear about current methods used to engage with customers when applying for a further exemption, such as by telephone or email, to ensure that the customer remains connected with services but also remains safe.

Move to area of lower employment prospects

7.152 Unemployment payments are designed as a safety net payment for people who are unemployed and are paid on condition that they do all they can to maximise their chances of finding suitable paid work. Moving to areas of high unemployment can disadvantage job seekers and limit their opportunities for work.^[137] A 26 week exclusion from payment of Newstart Allowance, Youth Allowance and Special Benefit applies if a person receiving one of these payments moves to an area of lower employment prospects.

7.153 An exemption from this exclusion period applies where the reason for moving is due to an ‘extreme circumstance’ such as domestic or family violence in the original place of residence.^[138] ‘Original place of residence’ is not defined in the Social Security Act or in the Guide to Social Security Law.

7.154 In the Social Security Issues Paper, the ALRC asked a general question as to whether Centrelink customers were aware of exemptions available in circumstances of family violence and, if so, whether they were likely to use the exemptions.^[139]

7.155 Stakeholders indicated that customers were generally not aware of the types of exemptions available. However, submissions did not directly address the question of exemptions available when a person has moved to an area of lower employment prospects.

7.156 As limited detail was provided in response to the Social Security Issues Paper, the ALRC is interested to hear whether the exemption available to victims of family violence to the exclusion period when a person moves to an area of lower employment prospects is an issue and, if so, what improvements might be necessary.