Mutual obligation failures under the Targeted Compliance Framework 001-18030208

The compliance investigation focuses on determining if:

• reasonable excuse has been established
• prior contact was made (where required), or
• misconduct has occurred

PST staff must ensure all of the evidence required to make a good decision is identified and appropriately considered by:

• providing a clear explanation of the mutual obligation failure that is under investigation, and the potential outcomes of the decision
• conducting an investigation focused on the relevant facts
• giving the job seeker the opportunity to respond to any adverse claims that have been made against them and to disclose any further information they would like considered
• making contact with the provider or relevant third party to assist in establishing the facts, where required
• consulting with a Virtual Support Queue (VSQ) staff member or a PST-skilled social worker. This may be appropriate to establish the impact of job seeker circumstances on capacity to comply. See Accessing a PST-skilled social worker for information on when consultation with a PST-skilled social worker may be required or appropriate

For information about specific non-compliance events, see:

• Refusing to enter into a Job Plan
• Not meeting points target or job search requirements
• Non-attendance or inappropriate conduct in a compulsory activity
• Non-attendance or inappropriate conduct in a job interview
• Non-attendance or inappropriate conduct in a compulsory provider managed appointment

All compliance investigations relating to mutual obligation failures must be recorded using the Compliance Investigation workflow. This workflow is accessed by selecting the active failure from the Participation Compliance Hub (BIPCW) in Process Direct:

• from the Process Direct landing page, select Customer Summary
• key the customer's CRN, select Go
• in the customer's record, in the Super Key field, key BIPCW > [Enter] to view the Participation Compliance Hub screen

On entering the workflow, contact with the job seeker is automatically recorded and key information relevant to the compliance investigation presents.

PST staff must confirm that the job seeker has heard the automated privacy message before their call was answered. If the job seeker advises that they did not hear the automated privacy message, PST staff are required to read the privacy statement from within the workflow to the job seeker. Ensure any concerns are addressed before proceeding.

Talking points that relate to the reason the failure was submitted and the excuse given to the provider should be discussed with the job seeker. PST staff are expected to use these points to ensure that that the job seeker has a clear understanding of the non-compliance event being discussed and the potential consequences if a penalty is applied.

The starting point for the investigation is the reported non-compliance event. The Compliance Investigation workflow displays information recorded by the provider on the Non-Compliance Report (NCR), including:

• the compulsory requirement
• the reason the job seeker provided for non-compliance, and
• why this was not considered valid

During the compliance investigation, PST staff must record:

• any relevant facts relating to the mutual obligation failure
• the reasons provided by the job seeker for not complying with the compulsory requirement
• any evidence gathered
• a decision to either apply, or not apply a financial penalty
• the rationale for the decision

Record a concise summary of any information provided by the job seeker relevant to the non-compliance event and any evidence they would be willing to provide to support their statements.

Identify the main excuse for the failure. Select the appropriate category and reason from the drop down options. It is essential that PST staff clearly identify the main excuse. This is because the Compliance Investigation workflow is intuitive and adjusts options available to the decision maker based on the main reason recorded.

If a decision relates to misconduct, the investigation must focus on whether an incident of misconduct occurred. A failure is not applied where the job seeker's actions were reasonable or not within their control.

For all other non-compliance events, the investigation must focus on whether the job seeker has reasonable excuse for the non-compliance event, and whether prior contact occurred. Matters that did not significantly and directly impact at the time of non-compliance cannot be considered when assessing reasonable excuse. Generally, matters that are within the job seeker's control would not be considered reasonable excuse.

The considerations given to what constitutes a 'reasonable excuse' for a job seeker may be different where the failure relates to:

• a specific, point-in-time requirement, such as attending an appointment with their provider
• a failure that covers a longer period, such as a failure for not meeting their points target (for Workforce Australia participants) or job search requirements (for Disability Employment Service (DES) participants)

Examples of a reasonable excuse that may be applicable for extended durations (like a job search or points reporting period) include, but are not limited to:

• local natural disaster
• bereavement
• family or caring responsibilities
• homelessness or unstable accommodation
• other circumstances (usually exceptional and/or unforeseen in nature)

For more information, see Assessing reasonable excuse for non-compliance with mutual obligation requirements.

Note: the job seeker Circumstances Impacting Compliance workflow must be updated to flag new job seeker circumstances identified that will impact on a temporary or ongoing basis or update existing job seeker circumstances that are no longer affecting. This is accessed via the links within the Compliance Investigation workflow. See Circumstances impacting job seeker compliance.

Has the job seeker established reasonable excuse for the mutual obligation failure, including prior contact or misconduct has not occurred?

• Yes, go to Step 4
• No, go to Step 6

The Decision and penalty page will only present rejection reasons that are relevant based on the non-compliance event and the job seeker's main excuse reason for the failure which was selected.

On the Decision and Penalty page, record an explanation of the decision made and details of the evidence used to support the decision. The summary must include:

• the matters that were taken into account when forming the decision
• how the relevant facts were substantiated (the evidence used to support the decision)
• the weight given to the evidence considered in the compliance investigation process

If reasonable excuse is established, a failure will not be applied.

For more information including the list of rejection reasons, see Rejecting a compliance action.

Free text must be sent to the provider where appropriate.

It is important to discuss the reason for the decision with the job seeker in a way that consistently reinforces expectations that they:

• talk to their provider about any circumstances impacting ability to comply with requirements
• actively participate with the compulsory requirements in their Job Plan
• contact prior to a requirement or appointment scheduled start time if unable to attend

If unable to verbally advise the job seeker of the decision to not apply the mutual obligation failure due to the call dropping out after the decision has been made, PST staff should still finalise the decision in the workflow. This is to ensure there is no delay to the job seeker being able to complete their report.

Procedure ends here.

On the Decision and Penalty page, record an explanation of the decision made and details of the evidence used to support the decision. The summary must include:

• the matters that were taken into account when forming the decision
• how the relevant facts were substantiated (the evidence used to support the decision)
• the weight given to the evidence considered in the compliance investigation process

If reasonable excuse is not established, or misconduct has occurred, a failure will be applied.

A decision to apply a failure as a result of a non-compliance with a mutual obligation failure and the fact that a financial penalty will apply, should be verbally explained to the job seeker at the end of the compliance investigation.

Ensure consistent messages are communicated regarding:

• the decision
• the financial penalty that is imposed as a result of the applied failure. For further information, see Targeted Compliance Framework financial penalties and payment cancellations
• their appeal rights. See Non-compliance with compulsory requirements - review and appeals
• talking to their provider about any circumstances impacting ability to comply with requirements
• actively participating with the compulsory requirements in their Job Plan
• contacting prior to a requirement or appointment scheduled start time if unable to attend

If unable to verbally advise the job seeker of the decision and/or review and appeal rights, PST staff should finalise the decision in the workflow. Finalising the decision will issue a letter to the job seeker advising of the adverse decision and review and appeal rights.