Case: Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1116
Outcome: referred to
proceeding was heard concurrently with another proceeding, VID 349 of 2009 which also concerned an appeal by Mr Piotto from a decision of the Tribunal to affirm a participation failure imposed by Centrelink in 2008; see Piotto v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 1116. These reasons should be read in conjunction with the reasons for judgment in that proceeding, particularly in respect of the relevant legislative background. The respondent initially applied to the Court for summary judgment in its contentions of fact and law filed on 10 March 2009. For reasons which were unexplained, counsel for the respondent did not press the application at the trial of the proceedings and the proceedings were heard on a final basis on 14 September 2009. This proceeding concerns an appeal by Mr Piotto from a decision of Senior Member Friedman of the Tribunal delivered on 1 May 2008. Senior Member Friedman affirmed the decision of the SSAT to uphold Centrelink's decisions to impose Newstart participation failures on Mr Piotto in respect of Mr Piotto's conduct on 14 August 2007, 6 September 2007 and 5 October 2007 ("the 2007 Participation Failures"). The Tribunal in considering the delegation issue stated "It is claims [sic] that there was not an instrument of authority or something that gave them [MatchWorks] the legal authority to act for Centrelink. I am not persuaded that this is the case at all". However, there was no evidence before the Tribunal to support this finding. In contrast to the circumstances considered by Bennett J in Lim v Secretary, Department of Education, Employment and Workplace Relations (No 2) [2008] FCA 1752 at [19] , the respondent did not adduce any evidence before the Tribunal to demonstrate which of the arrangements referred to in cl 3 applies to MatchWorks's activities on behalf of the respondent; see also Piotto at [17] [20]. Also the respondent has not adduced evidence to demonstrate that the relevant employees of MatchWorks were officers of an Employment Services Provider for the purposes of s 23(1) of the Act; see Lim at [19] and Piotto at [19] [20]. Mr Piotto also placed considerable emphasis on what he considered as the inability of the respondent to require him to sign a Newstart Activity Agreement. Mr Piotto's understanding of the Act in this respect is mistaken for the reasons discussed in Piotto at [25] [28]. The relevant question is whether Mr Piotto was prepared to enter into a Newstart Activity Agreement; see s 624(1)(c) of the Act. As indicated by s 605(4) of the Act, a Newstart Activity Agreement must be in writing between the Newstart recipient and the respondent. The respondent was entitled to ask Mr Piotto to indicate his acceptance of the written agreement through his signature. Mr Piotto has not shown that he was prepared to enter in to the Newstart Activity Agreements and to conclude that agreement in writing. Mr Piotto has not shown that he has a reasonable excuse for so refusing. Mr Piotto has not shown that the Tribunal's decision on this point was effected by any error of law. This ground of appeal also fails. The matter must be remitted back to the Tribunal for reconsideration. In the circumstances it is appropriate to make no order as to costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 8 October 2009 The Applicant appeared in person. Counsel for the Respondent: Mr R Knowles Solicitor for the Respondent: Herbert Geer Date of Hearing: 14 September 2009 Date of Judgment: 8 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1115.html