Assessing reasonable excuse for non-compliance with mutual obligation requirements 001-10040070

The legislative instrument specifies factors that must and must not be considered when assessing if a job seeker has a reasonable excuse for their non-compliance.

The following factors must be taken into account:

• access to safe, secure and adequate housing
• for reasons for non-compliance with mutual obligation requirements, see Item 1 in Table 2
• for reasons for unemployment, see Item 1 in Table 4
• literacy and language issues
• for reasons for non-compliance with mutual obligation requirements, see Item 2 in Table 2
• for reasons for unemployment, see Item 2 in Table 4
• illness, impairment or conditions that require frequent treatment including:
  - cognitive or neurological impairments
  - psychiatric or psychological impairments or mental illness
• for reasons for non-compliance with mutual obligation requirements, see Item 3 in Table 2
• for reasons for unemployment, see Item 3 in Table 4
• drug or alcohol related issues, see Table 3
• personal crisis, including:
  - death of an immediate family member
  - recent release from prison
  - Family and Domestic Violence or criminal violence
• for reasons for non-compliance with mutual obligation requirements, see Item 4 in Table 2
• for reasons for unemployment, see Item 4 in Table 4
• unforeseen family or caring responsibilities
• for reasons for non-compliance with mutual obligation requirements, see Item 5 in Table 2
• for reasons for unemployment, see Item 5 in Table 4
• undertaking paid work at the time of the failure
• for reasons for non-compliance with mutual obligation requirements, see Item 6 in Table 2
• any other relevant factors (excluding those which must not be considered) that directly affected the job seeker’s ability to meet their mutual obligation requirements
• for reasons for non-compliance with mutual obligation requirements, see Items 7-11 in Table 2
• for reasons for unemployment, see Items 6-8 in Table 4

The legislative instrument identifies factors that must not be considered:

• factors that did not directly prevent the job seeker from meeting the requirement
• drug and/or alcohol misuse or dependency for a job seeker subject to the Targeted Compliance Framework (TCF) model, and:
• has used this as a reasonable excuse for a previous failure, and
• was referred to treatment and refused or failed to participate in the treatment, see Table 2

Job seekers must contact their provider beforehand, where possible, if they are unable to attend or comply with a term in their Job Plan, including attending an appointment.

Prior contact is met when the job seeker contacts:

• their employment service provider, or
• another person or organisation identified in their Job Plan, for example the Job Plan may require a job seeker to contact their Work for the Dole (WFD) co-ordinator if they cannot attend WFD

When Participation Solutions Team (PST) staff investigating a failure establish a job seeker had a reasonable excuse, a financial penalty will:

• not be applied if
• prior contact occurred, or
• it was unreasonable to expect the job seeker to make prior contact
• be applied if:
• prior contact did not occur, and
• it was reasonable to expect the job seeker to have done so

Prior contact may not always be possible. A job seeker may contact shortly after a requirement. This may show genuine intentions of the job seeker trying and should be considered when making the decision.

Further details about information recorded by the provider is available in the Participation Compliance Hub.

All compliance investigations focus on the job seeker's reason/s for not complying with a compulsory requirement. This is the reported non-compliance event and can be reviewed in the Participation Report sent by the Provider.

During the investigation, the job seeker must be given a chance to explain why they did not meet the requirement.

If the job seeker indicates their circumstances prevented them from complying, PST staff need to question further to ensure they have a clear understanding of:

• how the circumstance directly affected their ability to comply
• if prior contact was not made, did the circumstance prevent prior contact from occurring?

PST staff must consider updating the job seeker's Circumstances Impacting Compliance to reflect the job seeker's current circumstances.

For assistance assessing impacts of a circumstance, it may be appropriate to consult with:

• a PST Virtual Support Staff, or
• a PST-skilled social worker, see Accessing a PST-skilled social worker

A circumstance impacting compliance may have been recorded because of a previous compliance discussion. Whilst these indicators do not automatically provide a reasonable excuse for a specific failure, they may provide helpful guidance around how the circumstance impacts the job seeker's participation.

Under no circumstances should a compliance investigation be delayed pending the outcome of an external process. Compliance investigations are a point in time determination, based on available facts and evidence.

When the outcome of an external decision changes the facts of the incident after a decision has been made, the decision should be reviewed. See Non-compliance with compulsory requirements - review and appeals.

It is the provider's responsibility to ensure compulsory requirements in the Job Plan do not conflict. If the non-compliance event conflicts with another compulsory requirement, the failure must be rejected.

A job seeker's ability to comply may be impacted if they:

• did not have access to safe, secure and adequate housing, or
• were using emergency accommodation or a refuge at the time the compliance incident occurred

If a job seeker advises their accommodation situation has affected their ability to comply, consider:

• When did the job seeker's accommodation circumstances change?
• Have they updated their address with Services Australia or their Provider prior to or as a part of this conversation?
• Is there something about the job seeker's accommodation circumstances that would have made it difficult for them to contact their provider prior to their compulsory requirement?

The literacy and language skills of a person can directly impact their ability to meet their day-to-day requirements.

Note: if the job seeker has language barriers, use an interpreter during the compliance investigation, or record the reasons why an interpreter is not being used.

If a job seeker advises their literacy and language skills affected their ability to comply, consider:

• Did the job seeker understand what they were required to do?
• Does the job seeker usually need help understanding or interpreting the notification of requirements?

If the job seeker is unable to communicate what their requirements or instructions related to participation in a compulsory requirement are, despite reasonable attempts made by the provider or Services Australia to help them understand this, reasonable excuse may still apply.

A job seeker's capacity to comply with their requirements may be affected by:

• medical conditions, illnesses or impairments for which the job seeker requires frequent treatment, including those that are episodic or unpredictable in nature
• any cognitive or neurological impairments. For example, the job seeker, because of their impairment, lacks understanding of what is required or is unable to undertake their requirements
• any psychiatric or psychological impairments or mental health conditions
• any other illnesses

Where the job seeker advises they are unable to comply with compulsory requirements as a result of medical conditions, illnesses or impairments, consider:

• If the incapacity directly affects the job seeker's ability to comply at the time of the requirements
• If a previously evidenced medical condition, included in the job seeker's Circumstances Impacting Compliance, has changed (either point-in-time or ongoing) in the way in which it impacts their capacity to meet their compulsory requirements
• If the incapacity affected the job seeker's ability to call beforehand in instances where it was required
• If a job seeker has submitted new medical evidence, or there is a current ESAt report with more information on the job seeker's condition, illness or impairment (including duration and/or manner of impacts upon compliance are detailed)

Where a job seeker did not make prior contact, but it was reasonable to do so, it is not necessary to request a medical certificate. The failure should be applied.

A failure will be automatically revoked when:

• a medical certificate is accepted after the failure has been determined, and
• the exemption period covers the incident date

Consider an ESAt referral when a new circumstance has been identified during the investigation, to ensure future servicing is appropriate for the job seeker's capacity.

A personal crisis may impact the job seeker's capacity to comply with a requirement. Including, but not limited to:

• the death of an immediate family member
• a relationship breakdown
• family and domestic violence
• family dislocation
• physical, emotional or sexual abuse, or
• a recent release from prison

Where a job seeker advises they were unable to comply due with their compulsory requirements as a result of to a personal crisis, it is important to consider:

• When the personal crisis occurred
• How the personal crisis significantly and directly impacted the job seeker's capacity to comply at the time of the requirement

The job seeker should be encouraged to provide evidence to support their explanation if there is no record of the crisis on the job seeker's record.

If the compliance discussion relates to a mutual obligation failure (which cannot be held to allow the job seeker an opportunity to supply evidence), it is appropriate to:

• make a decision based on the weighting of evidence available
• consult with an appropriate specialist to better understand the likely impact of the disclosed crisis upon the job seeker's ability to comply

If family and domestic violence concerns are identified or help is needed in identifying if it is occurring, see:

• Challenges faced by parents, and
• Family and domestic violence

Note: PST staff must consult with a PST-skilled social worker where the job seeker presents with family and domestic violence or has a current Family relationships/Domestic violence circumstance recorded. See Accessing a PST-skilled social worker.

Family and caring responsibilities can affect the person's capacity to comply with mutual obligation requirements.

Job seekers who are principal carers have flexible participation requirements in recognition of their caring responsibilities.

If a job seeker advises their family and/or caring responsibilities affected their ability to comply, consider:

• Was the caring requirement unforeseen?
• How did caring responsibilities directly impact the job seeker's capacity to comply with the requirement?
• What impact did the caring responsibilities have on the job seeker's capacity to make prior contact?

If a job seeker says their employment affected their ability to comply, consider:

• if working hours or income received in the instalment period (see the Employment Income Paid Details (EAPP) screen) has been or will be declared
• when did the jobseeker find out that they had to work?
• would it have been reasonable for them to contact to advise of their inability to attend due to work commitments?
• is evidence of work required including hours worked? For example, pay slips, rosters or employment contact details relating to the work in this period

Reasonable excuse does not exist if a job seeker who states they were working does not declare hours worked or income received in the instalment period where the non-compliance event has occurred.

It is reasonable for job seekers to commute from their home to attend a requirement using available forms of transport for up to:

• 90 minutes for a job seeker with full time mutual obligation requirements
• 60 minutes for a job seeker with a part-time mutual obligation requirement

If a job seeker says transport affected their ability to comply, consider:

• Was the job seeker given enough notice to arrange transport?
• Did something cause the transport arrangement to fail?
• Would it have been reasonable for the job seeker to contact and reschedule the requirement for another time when transport was available?

Cultural barriers/requirements may impact the job seeker's capacity to comply with a requirement. Including, but not limited to:

• English as a second language
• Cultural obligations
• Remoteness
• Cultural Business or Sorry Business
• Culturally significant event/ceremony
• Participation in certain activities during religious periods
• Activity or requirement contravenes their cultural or religious beliefs

Where a job seeker advises they were unable to comply with their compulsory requirements due to cultural reasons, it is important to consider:

• how the cultural reason significantly and directly impacted the job seeker's capacity to comply at the time of the requirement
• what impact the cultural reason had on the job seeker's ability to make prior contact

If a job seeker advises they have forgotten their requirement, the following should be considered:

• How recently the notification occurred
• How often and for how long has the job seeker been required to meet the requirement?
• Is there an underlying reason (that is medical condition or side effect of medication take for management of a medical condition) for forgetfulness?
• If yes, what does the job seeker do to help them manage their day-to-day requirements, like remembering the time and date of a doctor's appointment?
• How often has the job seeker offered this excuse?
• Did the job seeker contact to reschedule as soon as they became aware of the missed requirement?

When a job seeker advises they have confused their requirements, the following should be considered:

• How recently, and in what manner (that is written appointment cared, electronic notification, etc.) were they notified?
• Did the job seeker attend either requirement? For example, it is not an excuse to say you thought the appointment was at the time of another appointment if they did not attend either appointment.
• How long has the job seeker been attending their various requirements?

When a job seeker advises they were required to attend a job interview at the time of the requirements, consider the following:

• When did they find out about the job interview?
• Is it reasonable for the job seeker to advise of their inability to attend before the requirement?
• Did the provider arrange the job interview? If the provider:
• was involved, is the compliance action suitable? The provider can be contacted to discuss
• was not involved, did the job seeker attempt to contact their provider before the requirement to advise of the job interview?

Job seekers with an approved full-time short course within their Job Plan are considered as meeting their mutual obligation requirements. These job seekers must:

• stay connected to their provider
• continue to meet all their mutual obligation requirements including job search
• attend appointments when advised, and
• accept suitable offers of work

Job seekers with a full-time short course/study compulsory requirement in their Job Plan cannot be considered to be failing to comply with mutual obligation requirements if their study commitments prevented them from:

• complying with the requirement, or
• accepting an offer of suitable work

If the non-compliance event conflicts with approved course/study requirements, reject the failure.

Note: Community Development Program (CDP) job seekers are not subject to the Drug and/or Alcohol reasonable excuse provisions described in this table.

Job seekers outside of CDP can have drug and/or alcohol dependency considered as a reasonable excuse in limited circumstances, when the job seeker advises their non-compliance is as a direct result of drug and/or alcohol dependency, and:

• evidence of their dependency exists via a current Employment Services Assessment (ESAt) or medical/other evidence of dependency, and
• this is the first time the job seeker has used drug and/or alcohol dependency, or
• they are participating in treatment, or
• they have agreed to participate in treatment but are unable to because:
• appropriate treatment options are unavailable
• there is supported medical reasons for their inability to participate in treatment, or
• they are unable to participate in treatment for other reasons

Where drug and/or alcohol dependency is accepted as the main reason for the failure, record the following in the Compliance Investigation workflow:

• Category: Requirement/job is not suitable or they have a good reason - personal
• Reason: Substance or alcohol use affected compliance

Reject the failure using: Drug or Alcohol related reasons

Ensure the job seeker is advised and understands:

• 'A penalty won't be applied today due to your drug and/or alcohol barriers, your provider will discuss this with you and advise you if treatment options are available in your area'
• 'If you refuse to start treatment offered by your provider, we cannot accept drug and/or alcohol barriers as a reason for not meeting your requirements in future'
• 'If you are having difficulty meeting a requirement, you need to discuss this with your provider before the requirement or appointment starts'

Job seekers outside of CDP cannot use drug and/or alcohol dependency as a reasonable excuse when:

• they have previously used this as a reason for non-compliance, and
• they have refused or failed to participate in appropriate treatment options arranged by their provider

The Compliance Investigation workflow will not display Drug or Alcohol related reasons as an option to reject a mutual obligation failure if the reason was recorded previously.

Ensure the job seeker is advised and understands:

• 'A penalty will be applied today, because we can't accept drug/alcohol problems as an excuse for not meeting your requirements'
• 'If you want to know more about drug/alcohol treatment options available in your area, talk to your provider'
• 'If you start treatment, we may be able to take drug and/or alcohol issues into account in the future if they have directly affected your ability to meet your requirements'
• 'If you are having difficulty meeting a requirement, talk to your provider before the requirements or appointment starts'

A job seeker's ability to work or remain in employment may be impacted if they:

• did not have access to safe, secure and adequate housing, or
• are using emergency accommodation or a refuge at the time they became unemployed

If a job seeker advises their accommodation situation has affected their ability to work, consider:

• When did the job seeker's accommodation circumstances change?
• Is there something about the job seeker's accommodation circumstances that would have made it difficult for them to continue to work?

The literacy and language skills of a person can directly impact their ability to meet their day-to-day commitments for work.

Note: if the job seeker has language barriers, use an interpreter during the compliance investigation, or record the reasons why an interpreter is not being used.

If a job seeker advises their literacy and language skills affected their ability to continue working, consider:

• If the employer knew the job seeker had literacy and language issues, and if so, what supports were in place to help the job seeker?
• If the job seeker fully understood their role and what was asked of them?
• If the job was suitable for the job seeker?

A job seeker's capacity to continue working may be affected by:

• medical conditions, illnesses or impairments for which the job seeker requires frequent treatment, including those that are episodic or unpredictable in nature
• any cognitive or neurological impairments. For example, the job seeker, because of their impairment, lacks understanding of what is required or is unable to undertake their usual tasks linked to their role
• any psychiatric or psychological impairments or mental health conditions
• any other illnesses

If the job seeker advises they are unemployed as a result of their illness/impairment, care must be taken to make sure the reasons for ceasing employment are reasonable. Staff should consider:

• If the incapacity directly affected the job seeker's ability to continue working?
• If there is supporting evidence of their illness or impairment?
• If the job seeker had access to sick leave?
• If sick leave was exhausted, was ‘leave without pay’ an option?
• If the job seekers illness or impairment is permanent, was the job suitable?

A personal crisis may impact the job seeker's capacity to work. Including, but not limited to:

• the death of an immediate family member
• a relationship breakdown
• family and domestic violence
• family dislocation
• physical, emotional or sexual abuse, or
• a recent release from prison

If a job seeker advises they left work as a result of a personal crisis, it is important to consider:

• When the personal crisis occurred?
• How the personal crisis significantly and directly impacted the job seeker’s ability to continue to work?

The job seeker should be encouraged to provide evidence to support their explanation if there is no record of the personal crisis on their record, or the unemployment failure/unemployment non-payment period investigation is a part of a new claim.

If family and domestic violence concerns are identified or help is needed in identifying if it is occurring, see:

• Challenges faced by parents, and
• Family and domestic violence

Note: PST-skilled staff must consult with a PST-skilled social worker if the job seeker presents with family and domestic violence or has a current Family relationships/Domestic violence circumstance recorded. See Accessing a PST-skilled social worker.

Family and caring responsibilities can affect a job seeker’s ability to continue working. If a job seeker advises their family and/or caring responsibilities affected their ability to start or continue to work, consider:

• If the job is suitable for the job seeker and their circumstances?
• How the job seekers caring responsibilities directly impact their ability to start or continue to work?

Note: Principal carer job seekers due to their caring responsibilities cannot be penalised if their work requires them to work more than 15 hours per week, an unemployment failure or unemployment non-payment period must be rejected.

It is reasonable for job seekers to commute from their home to work using available forms of transport for up to:

• 90 minutes for a job seeker with full-time mutual obligation requirements
• 60 minutes for a job seeker with part-time mutual obligation requirements

If a job seeker says transport affected their ability to continue to accept a job, consider:

• How was the job seeker getting to their job before they stopped working?
• What happened that changed their ability to get to work?
• Would it have been reasonable for the job seeker to use public transport?

Cultural barriers/requirements may impact the job seeker's capacity to continue working. Including, but not limited to:

• English as a second language
• Cultural obligations
• Remoteness
• Cultural Business or Sorry Business
• Culturally significant event/ceremony
• Participation in certain activities during religious periods
• The job contravening their cultural or religious beliefs

If a job seeker advises they could not continue working, it is important to consider:

• How the cultural reason significantly and directly impacted the job seeker's ability to start and/or continue to work?
• What action did the job seeker’s employer take to assist them continuing to work?

When a job seeker advises they left their job to start a new one, but the new job offer fell through, consider:

• Does the job seeker know the reasons why the job offer was withdrawn?
• When did they find out the new job offer was withdrawn?
• Was the withdrawal of the job offer within the job seekers control?
• Does the job seeker have evidence of the job offer and its withdrawal?