Monday, 12 November 2018
Regulations and Determinations
Pursuant to the amended motion that went through the chamber this afternoon, I move the following motions together:
That the Social Security (Administration) (Reasonable Excuse—Participation Payments) Determination 2018, made under the Social Security (Administration) Act 1999, be disallowed [F2018L00779].
That the Social Security (Administration) (Job Search Efforts) Determination 2018, made under the Social Security (Administration) Act 1999, be disallowed [F2018L00776].
That the Social Security (Administration) Legislation Amendment and Repeal (Reasonable Excuse—Participation Payments) Determination 2018, made under the Social Security (Administration) Act 1999, be disallowed [F2018L00783].
I intend that the chamber will debate them together, but then I will put them separately to enable the chamber to vote differently on the different instruments.
These instruments have been made since the passage through the parliament of the Social Services Legislation Amendment (Welfare Reform) Act 2018. The Australian Greens did not support the passage of this legislation. In fact, we strongly opposed it, having raised numerous concerns about and opposed a number of the schedules. Schedules 14 and 15 are the relevant schedules for the purposes of today's debate—they are the ones these instruments refer to. Schedule 14 made changes to the reasonable excuses for people looking for work, and schedule 15 introduced the targeted compliance framework, commonly called the TCF. The targeted compliance framework commenced on 1 July 2018. Hence, it has been in operation for four months.
The job search instrument sets out how the Secretary of the Department of Jobs and Small Business is to determine whether or not a person who is receiving a participation payment has undertaken adequate job search efforts in relation to a period for the purposes of determining whether a mutual obligation failure has been committed under the targeted compliance framework, or the TCF. Specifically, under paragraph 42AC(1)(e) of the Social Security (Administration) Act 1999. The instrument specifies factors relating to both the quality of job search efforts and the quantity of job search efforts that the secretary must consider when determining whether or not the person has undertaken adequate job search efforts in relation to a period.
In relation to the quality of job search efforts, the factors that the secretary must take into account are whether the person has undertaken job search efforts in relation to jobs at a range of levels of seniority and remuneration that are suitable work for the person—these are really important points—then, in relation to jobs in a variety of fields and occupations, including fields and occupations other than those in which the person has qualifications or experience, whether that work is suitable work for the person and a variety of methods to make contact with potential employers have been used.
In relation to the quantity of the job search efforts, the factors that the secretary must take into account are the number of job search efforts undertaken in that period and whether or not those job search efforts meet the number specified in the person's employment pathway plan. The determination also provides guidance regarding what will count as a job search effort to assist the secretary in his or her calculation of the number of job search efforts undertaken in relation to a period. For example, if the person contacts an employer more than once in relation to a particular role during the period in question, this will only be counted as one job search effort, even if a number of efforts are made over that period.
The instrument tightens the requirements for job search for those receiving a participation payment. Even though employment service providers are required to consider the quality of a person's job searches prior to this instrument coming into effect, the relevant guideline only required providers to think about how useful each job search was to improving the jobseeker's chances of getting a job and listed a number of matters that they could consider when contemplating this—specifically, the jobseeker's skills and the types of jobs they'd applied for, if the types of jobs applied for were reasonable given the jobs available in the local area, the different ways the jobseeker applied for jobs, and if job referrals were followed up and how this was done.
The guideline outlined that providers were also required to consider factors that affected their circumstances during the period, listing five factors, one of which was whether the jobseeker had a vulnerability indicator. The explanatory statement for the job search instrument does not mention these same factors. It merely says that providers, as delegates of the secretary, may also exercise discretion when assessing compliance with these requirements and may take into account factors such as a person's individual circumstances and local labour market conditions when working out if a person has undertaken adequate job search. In our view, this is a weakening of the protections, as it is no longer necessary for the person's circumstances to be taken into account and there is no longer a list of factors providing the minimum to be considered. We are deeply concerned, therefore, about how this will be interpreted. What we know from those receiving participation payments is that employment service providers often do not ensure that the number of job searches specified in the person's employment pathway is suitable for the person and the area in which they live. So how can we be sure that the same employment service providers will exercise discretion and take into account other factors as a person's individual circumstances when that's not specifically specified?
There is also concern that people could be found in breach, depending on the discretion applied by the employment service provider, regarding what is considered suitable work for each individual. It could be that someone is found not to have undertaken adequate job searches because they have only applied for jobs below their qualifications or, conversely, only applied for jobs in their qualification fields. This is all about the employment service provider's interpretation at any given time. Forcing people to apply for a variety of jobs at different skill levels in a variety of ways will not create jobs where they don't exist. It merely forces those people to comply with rigid requirements that may not meet their needs. They should be able to adopt job search methods that work for them.
The reasonable excuse instrument sets out what factors the Secretary of the Department of Jobs and Small Business must and must not consider when deciding whether a person who is receiving a participation payment has a reasonable excuse for committing a compliance failure under both the targeted compliance framework and the previous compliance framework, which continues to apply to participants in the Community Development Program, commonly known as CDP, who have been defined as 'declared program participants'. The list of factors that must be taken into account replicates, with some minor amendments, most of the factors from the previous reasonable excuse instruments. With regard to what must be taken into account by the secretary for both compliance frameworks, the secretary must not take into account a factor where they are not satisfied this factor directly prevented the person from meeting the requirement. For those subject to the TFC, the instrument provides that the secretary must not take into account a person's drug or alcohol misuse or dependency in determining whether they had a reasonable excuse for a compliance failure where they have previously had their misuse or dependency as a reasonable excuse and they have refused to participate in available and appropriate treatment for their drug or alcohol misuse or dependency to which they have been referred and which they are able to participate in. This is not applicable to those subject to the previous compliance frameworks—specifically the declared program participants.
Our main concern with this instrument is that it implements the 2017-18 budget measure to restrict the use of drug or alcohol misuse or dependency as a reasonable excuse for a compliance failure to one occasion for those outside of CDP. We do not support this measure. If the person concerned has an addiction, that is a health issue and should be dealt with by a health professional. The government should not be penalising people for their drug or alcohol misuse or dependency or singling it out without addressing the underlying issues for this misuse or dependency, such as physical and mental health issues, childhood trauma or poverty. This measure fails to understand the complicated process of recovery and will only cause harm to vulnerable members of our community. There are many barriers to employment the government could be focusing their attention and efforts on instead, such as lack of transportation and perceived discrimination, to name but two.
The 'reasonable excuse' amendment and repeal instrument amends one of the previous 'reasonable excuse' instruments, referred to as the DEEWR determination, to remove references in that instrument to the factors prescribed for the purposes of the previous compliance framework. This has the effect of limiting that instrument so that it no longer applies to recipients of participation payments. This instrument also repeals the other previous 'reasonable excuse' instrument, referred to as the FaHCSIA determination, as it is redundant. The overall effect is that the 'reasonable excuse' instrument is now the sole instrument setting out all of the factors the secretary must and must not take into account when deciding whether a person in receipt of a participation payment has a reasonable excuse for committing a compliance failure.
By disallowing this instrument and the 'reasonable excuse' instrument, the DEEWR determination would revert back to how it was and the FaHCSIA determination would be revived. These instruments set out the factors the secretary must take into account when deciding whether a person who is receiving a parent payment has a reasonable excuse for committing a compliance failure under the previous compliance framework—that is, they would apply to declared program participants and the measure to tighten 'reasonable excuse' in relation to drugs and alcohol for those outside of the CDP would be gone. These particular instruments are applying a punitive, top-town approach to the way we support and work with those who are looking for work. When we are looking at the issues here and the decisions that are being made—and I referred earlier to the discretion of the employment service providers—we are seeing a lot of failures in the operation of jobactive, because they're operating within the jobactive system. We are seeing a lot of failures of that particular system.
I go back to the instrument where we're talking about the job search efforts and remind the chamber that this will be implemented by the consultants of employment service providers, who, in fact, are not required to have qualifications. They are often referred to as employment consultants or employment case workers, depending which service provider they're employed by. It's quite obvious from the evidence we've already received in the jobactive inquiry being carried out by the Senate Education and Employment References Committee that there are no formal qualifications required or specified for employment consultants. So there are a variety of consultants holding a variety of qualifications, but there are no formal qualifications required. The employment consultants have case loads that are far too large, and they're struggling to address and implement the new targeted compliance framework. We heard the week before last at the inquiry about the fact that employment service providers, the peak organisations, were not consulted before the government announced in the budget the new compliance framework they intended to introduce. The first they learnt of that was when there was an announcement made in the budget. We, and they, are operating within a system that does not adequately support jobseekers, and we hear that over and over again in submissions to the inquiry, in the phone calls and emails that I get very regularly to my office, and from constituents, who are walking into our office now more than ever to outline their concerns about the system.
The issue here in terms of adequate job searches is that people could be pinged for only looking for jobs that are in their area of qualifications. They could be pinged for not looking at jobs that are in areas for which they are not qualified but which are considered more entry-level jobs or they could be pinged for focusing on that particular area and for looking for jobs that they are overqualified for. In other words, the goalposts could be anywhere for people in terms of their jobactive searches. I hear consistently from people, particularly those that are in stream A, that they have, in fact, found the jobs themselves, that they did not receive adequate support from their employment service provider and that they are not getting access to the Employment Fund. People consistently talk about not getting access to the Employment Fund. They talk about basically being forced to sign their employment pathway plan or their employment plan—which they in fact don't support and are very concerned about.
We are working within a system which witnesses to the jobactive inquiry a couple of weeks ago described as a punitive based approach, an aggressive system that relates to compliance, which is what this new job search instrument is about. It's about more and more compliance in a system that is supposed to be helping people find work. A large number of people who have emailed and phoned my office and constituents who have come to my office talk about a system that punishes and is focused on compliance rather than helping. With the introduction of the TCF, more and more people are concerned that employment consultants or caseworkers are now seen as the enforcers of the system rather than being there to support and help people find work. They are the ones that now determine the demerit points that people will receive—at least up to the demerit point 5 through that green and amber zone. That is going to start hurting the relationship between a jobseeker and the employment consultant even more.
We're also hearing about mismatching between Work for the Dole placements and people's qualifications. Again, compare that to the requirement to look for areas within your field of qualifications and areas outside your field of qualifications. We hear repeatedly of people being placed in Work for the Dole placements that are completely unsuitable to provide training and to provide a work-like experience for people. For example, a witness to the inquiry said that he had quite significant qualifications in communications and he was put to work in a laundry folding sheets and sorting out the coloured clothes from the white clothes. I fail to see how that has given that person a work-like experience or any training in his area of expertise. One wonders how people could think that that is a system that is being supportive of people and does not 'demonise' them, 'shame' them and make them 'feel worthless'. All those words are words that I have heard people express to me about this system. These instruments are implementing areas of a system that are not working, that don't provide the sorts of supports that people looking for work need. I've not heard one person say to me in all my time—